Verhagen v RSPCA[2025] QDC 55

DISTRICT COURT OF QUEENSLAND

Appeals

1. [1]
   Elizabeth Alice Verhagen was convicted after a trial before the Magistrates Court at Ipswich of 13 offences against the Animal Care and Protection Act 2001 (ACPA). Ms Verhagen was placed on probation for 18 months with no convictions recorded. Ms Verhagen was ordered to pay an amount for investigation, professional and summons costs, prohibited from possessing dogs for the purpose of breeding for five years, and an order was made for disposal of one animal. Ms Verhagen appeals the convictions and sentence.

2. [2]
   The appeals against conviction assert various errors by the learned acting Magistrate in the conduct of the proceedings and contend the findings were contrary to the evidence.

3. [3]
   For the reasons that follow, I have concluded the appeals regarding some charges should be allowed, those convictions set aside and verdicts of not guilty entered. In particular I would acquit the appellant of charge number 3 on the complaint sworn on 1/7/2020, and charges numbered 8, 14 and 15 on the complaint sworn on 19/8/2020. The appeals against conviction for the remaining charges should be dismissed, albeit the basis upon which the appellant is found guilty of some of those charges differs from that found by the learned acting Magistrate.

4. [4]
   Because the appellant has been convicted of fewer charges, the basis of some convictions has altered, and in light of the appellant’s having effectively served the sentence imposed below, it seems to me appropriate I hear the parties regarding sentence and any ancillary orders.

Proceedings before the Magistrates Court

5. [5]
   The prosecution of the appellant concerned dogs she owned which were kept on her property. In essence the prosecution alleged the appellant mistreated dogs under her care by failing to take reasonable steps to provide them with water, maintain clean accommodation or living conditions, and treat disease; by causing an animal pain that was unjustified, unnecessary or unreasonable; and by failing to comply with a compulsory code of conduct requiring she maintain housing that was clean and appropriate for the dog’s health and welfare.

6. [6]
   The trial of the charges took place before an acting Magistrate at Ipswich. Evidence was taken over seven sitting days; namely, 11, 15 & 16 August, 9 & 13 September, 24 & 25 October 2022. A short hearing regarding making of written submissions took place on 13 January 2023. The acting Magistrate delivered oral reasons for decision on 13 April 2023 and sentenced the appellant on 18 July 2023. Counsel, instructed by the RSPCA, appeared for the prosecution. The appellant conducted her own defence. The learned acting Magistrate was informed at the outset that an earlier ruling had declared the appellant a “special witness” on account of medical conditions which required regular breaks. Due allowance was made for the appellant’s health conditions; on some days the appellant was unable to attend at all, while other hearing days were shortened because the appellant was unable to continue. 

7. [7]
   The appellant was initially charged upon two separate complaints with a total of 35 charges alleging offences contrary to ACPA. The prosecution withdrew 21 of these charges at the commencement of the trial and those charges were dismissed. Other charges were amended. Ultimately, the appellant was convicted of 13 charges and acquitted of one charge (charge 31). The appellant was charged and tried conjointly with her daughter Tiana Daniels in respect of charges numbered 26, 28 and 31. Ms Daniels, who also self-represented, was found not guilty of each charge.

8. [8]
   Before the appellant was called upon to enter pleas to the charges, she raised an issue concerning the nature of the prosecution. The appellant in effect submitted the evidence was inadmissible and/or the proceedings should be stayed on account of the conduct of the RSPCA investigator. The acting Magistrate ruled against these submissions.

9. [9]
   The acting Magistrate read all of the charges in full, and the appellant entered a single plea of not guilty. The trial was then commenced treating that response as a plea of not guilty to all charges.

10. [10]
    It is unnecessary to recite each charge in full. The essence of the amended charges and the particulars contained therein, numbered as described in the proceedings below, are as follows:

Charge 3 (complaint sworn 1/7/2020)

Breach of duty of care to Golden Retriever Summer.

Particulars: The defendant failed to provide appropriate treatment for dental disease.

Charge 1 (complaint sworn 19/8/2020)

Breach of duty of care to Chihuahuas Pablo and Poppy.

Particulars: The defendant confined the dogs to an enclosure which was unclean and where the dogs had fleas.

Charge 3 (complaint sworn 19/8/2020)

Breach of duty of care to Chihuahua Pablo.

Particulars: The defendant failed to provide appropriate treatment for dental disease.

Charge 7 (complaint sworn 19/8/2020)

Breach of duty of care to Great Danes Nala and Jigsaw.

Particulars: The defendant confined the dogs to an enclosure that was unclean, where the dogs did not have access to appropriate bedding, and where the dogs had fleas.

Charge 8 (complaint sworn 19/8/2020)

Breach of duty of care to Great Dane Jigsaw.

Particulars: The defendant failed to provide appropriate treatment for ear infection.

Charge 9 (complaint sworn 19/8/2020)

Breach of duty of care to Great Dane Jigsaw.

Particulars: The defendant failed to provide appropriate treatment for dental disease.

Charge 10 (complaint sworn 19/8/2020)

Breach of duty of care to Golden Retrievers Honey and Cody.

Particulars: The defendant confined the dogs to an enclosure that was unclean, where the dogs did not have access to appropriate bedding, and where the dogs had fleas, and where infected with hookworm.

Charge 13 (complaint sworn 19/8/2020)

Breach of duty of care to Golden Retriever Cody.

Particulars: The defendant failed to provide appropriate treatment for dental disease.

Charge 14 (complaint sworn 19/8/2020)

Breach of duty of care to Golden Retriever Cody.

Particulars: The defendant failed to provide appropriate treatment for osteoarthritis.

Charge 15 (complaint sworn 19/8/2020)

Cruelty to Golden Retriever Cody by causing pain that was unjustifiable, unnecessary or unreasonable.

Particulars: The defendant cut two lumps off the dog’s body with a scalpel.

Charge 26 (complaint sworn 19/8/2020)

Breach of duty of care to Chihuahuas Twinkie and Chica and Golden Retriever Shayla.

Particulars: The defendant failed to provide the animals with an appropriate source of water.

Charge 28 (complaint sworn 19/8/2020)

Breach of duty of care to Chihuahuas Cadbury, Pixie, Pippa and Papi.

Particulars: The defendant failed to provide the animals with an appropriate source of water.

Charge 30 (complaint sworn 19/8/2020)

Breach of compulsory code requirement.

Particulars: Regarding dogs Pablo, Poppy, Nala, Jigsaw, Honey and Cody. The defendant failed to provide housing and exercise areas that were maintained in a clean state and appropriate for the health and welfare of a dog.

Charge 31 (complaint sworn 19/8/2020)

Breach of compulsory code requirement.

Particulars: Regarding dogs Twinkie, Chica, Shayla, Cadbury, Pixie, Pippa and Papi. The defendant failed to ensure that (a) the dog or puppy had access to drinking water at all times, and (b) the quantity and quality of water met its physiological needs.

11. [11]
    In opening the prosecution case, counsel stated, “there’s a commercial aspect to the possession of these animals and their use for breeding purposes” and acknowledged there was “overlap between the breach of code offence and the breach of duty offence”.

12. [12]
    Yorick Wahlberg-Schmitt gave evidence he was employed by RSPCA and was appointed an inspector under ACPA. On 3/6/2020 he assisted Inspector Barraud in executing a warrant at the appellant’s address at 34 Topaz Crescent, Lockyer Waters. A search was conducted of those premises. Mr Wahlberg-Schmitt documented animals located and took photographs and video recordings. He described the animals he saw confined in various enclosures which he numbered. His descriptions included:

• Pen 1 contained dogs, Pablo and Poppy (Chihuahuas), both had a dirty coat and were flea burdened. Pablo had bad breath and worn teeth. The pen contained a doghouse, smelt of urine, a towel was in the house which appeared dirty, there was faeces in the pen. Exhibit 2 is photographs of pen 1.
• Pen 6 contained dogs Jigsaw and Nala (Great Danes). Both dogs had a flea burden, bad breath and dirty ears. Jigsaw had an ear infection. Exhibit 6 is photographs of Nala; Exhibit 7 photographs of Jigsaw. Pen 6 contained a metal shed as shelter with no bedding, water was available, there was lots of faeces in the pen, the floor was mostly dirt, with lots of prickles and weed. Exhibit 5 is photographs of pen 6.
• Pen 7 contained dogs Cody and Honey (Golden Retrievers). Both dogs had a flea burden and bad breath. Photographs of Cody are Exhibit 9; photographs of Honey Exhibit 10. Pen 7 contained shelter with no bedding, the pen contained a lot of faeces. Exhibit 8 is photographs of pen 7.

13. [13]
    Mr Wahlberg-Schmitt denied the suggestion that most fleas on the animals were dead fleas; he maintained he saw live fleas that were moving around. He acknowledged it was difficult to see in the photographs in Exhibit 8 the faeces he claimed was present in pen 7.

14. [14]
    Daniel George Young gave evidence via phone. Mr Young said between August and July 2020 he was the Chief Inspector at RSPCA. He acknowledged during that period Inspector Barraud worked under him. He said he visited the appellant’s property on 29/7/2020, assisting in an animal welfare direction check. He said Inspector Barraud did not require his approval to seize an animal during an investigation. He could not recall whether he spoke with Ms Barraud via phone on 3/6/2020 and did not recall if Barraud had a change of mind about seizing animals as a result. He did not recall encouraging Barraud to seize animals.

15. [15]
    Summer Jane Heath-Crilley, also employed by RSPCA as an inspector, attended the appellant’s residence on 3/6/2020, and assisted by taking photographs and video footage. Exhibit 11 includes photographs of the enclosure where dogs Pablo and Poppy were located. Ms Heath-Crilley described there being dried faeces, consistent with being a day or two old, in that enclosure. In cross-examination she agreed that could not be seen in the photos, and said the yard was not heavily littered but some faeces was present. Re-examined, she said there was some fresh faeces, the yard was not heavily littered with faeces, perhaps “several days of build-up”. Regarding pen 6, she described the yard was very thick with prickles and heavily littered with faeces. She said dogs in pen 6 appeared thin and had lots of fleas. Ms Heath-Crilley could not recall the condition of pen 7, recalled the dog Honey seemed to have “pretty good body condition” and dog Cody appeared a “little bit underweight”. Ms Heath-Crilley identified some documents located at the appellant’s residence and which she was asked to photograph; including a calendar with notations marked on it, admitted as Exhibit 12, and a document titled “Care guide for your new Golden Retriever puppy”, admitted as Exhibit 13.

16. [16]
    Ms Heath-Crilley said when she and Inspector Barraud arrived at the appellant’s house the appellant greeted them dressed in pyjamas. Ms Heath-Crilley agreed if the appellant had just risen it was expected to see faeces in the animal enclosures. A copy of the Queensland Animal Welfare Standards and Guidelines was admitted as Exhibit 14. Regarding pen 6, in which the Great Danes were located, Ms Heath-Crilley held concerns regarding the prickles and faeces in the yard. She acknowledged the prickles appeared dry and she did not touch them with her hands.

17. [17]
    The appellant sought to cross-examine Ms Heath-Crilley with reference to a document the appellant produced, described as a record of her treatment of animals over the course of 2020, and which also reflected the calendar entries photographed and admitted as Exhibit 12. Objection was taken to these questions on the basis the witness could not comment upon a document they had not seen or prepared. The objection was upheld, and the learned acting Magistrate informed the appellant the document was more properly one she could introduce herself in evidence.

18. [18]
    Melissa Anne Barraud was previously an Inspector employed by RSPCA and was the lead investigator in this case. On 3/6/2020 she executed a warrant at the appellant’s address; a copy of the warrant was admitted as Exhibit 15. Ms Barraud said she searched the house first, and with assistance, the remainder of the property. She described:

• Pen 1 housed two Chihuahuas, had no enrichment (toys), with faeces present.
• Pen 6 housed two Great Danes, a huge build-up of faeces that appeared weeks old, had prickles everywhere, no bedding, nor enrichment, prickles were embedded in the dogs’ coats and feet, the dogs had a lot of “stick” fleas on them.
• Pen 7 housed two Golden Retrievers, had a lot of old faeces and no bedding. The dog Cody appeared underweight and had lumps on his body.

19. [19]
    Ms Barraud said she recorded events, including her conversations with the appellant on a body worn camera. A portion of the recording which captured conversation between Ms Barraud and the appellant, relevant to the charge of animal cruelty to dog Cody, was played and the recording admitted as Exhibit 16.

20. [20]
    The recording occurred when Ms Barraud and the appellant were in pen 7 and RSPCA staff were examining Honey and Cody. The appellant described to Inspector Barraud that Cody had a lump on his body, and had others, including two she removed by cutting them out. The appellant explained the lumps only became a problem when they “break the skin” due to the dog scratching them. She described them as fatty lumps. She said both lumps became “raw”. She said one of the lumps was the size of a one cent piece, the other larger than a golf ball but smaller than a tennis ball. The appellant explained she applied numbing cream and waited for it to take effect and continued to apply numbing cream during the process of removal. Asked when that occurred, the appellant paused and said “It would be - 18 months ago”.

21. [21]
    Ms Barraud said she seized animals as evidence under the warrant due to concern about living conditions, including build-up of faeces, lack of bedding and enrichment; and because dogs required treatment for particular conditions, such as, broken tooth of Summer, dental disease, and Cody was under-weight with muscle wastage. She gave the appellant a seizure receipt identifying the animals seized and the reason. A copy of the receipt was marked Exhibit 17. Ms Barraud also gave the appellant an animal welfare direction, setting out concerns regarding the care of particular animals, what needed to be done in respect of them, and detailing when compliance checks would be carried out. A copy of the direction was admitted as Exhibit 18. Ms Barraud said the next day she took a photograph of dog Pablo, who had dental disease that required teeth extraction; admitted as Exhibit 19.

22. [22]
    Ms Barraud said she again attended the appellant’s address on 10/6/2020 and 1/7/2020 for the purpose of animal welfare direction checks and on each occasion the appellant was in compliance with the direction. She next attended the appellant’s address on 15/7/2020 at about 9:00am. She said the appellant was in her pyjamas and may have just awoken. She said the appellant told her she was expecting her to come later in the day at about 1:00pm, as per their agreement. Ms Barraud made observations regarding animals the subject of the direction. Her descriptions included:

• Pen 2 contained Golden Retriever Shayla and Chihuahuas Twinkie and Chica. The enclosure containers had no water. The dogs were then supplied water and drank.
• Enclosure containing Chihuahuas, Cadbury, Pixie, Pippa and Pappy. The enclosure had no water that was accessible.

23. [23]
    Ms Barraud said the appellant claimed to have provided the dogs water the night before. Ms Barraud said the weather was cool, the bowls had not been tipped over and were completely dry and she disbelieved the appellant’s claim. Ms Barraud said there was non-compliance with the welfare direction regarding water for the dogs and lack of enrichment for dogs Poppy and Casper. Ms Barraud seized the dogs on account of non-compliance with the direction. A copy of the receipt for the seizure was admitted as Exhibit 20.

24. [24]
    Ms Barraud said on 15/7/2020 the appellant was the only person present at the residence and appeared in charge of the animals. She said the appellant told her she re-homed the animals, to her daughter Ms Daniels, so as to prevent them being seized. Ms Barraud later had a text message exchange with Ms Daniels who was claiming ownership of the animals seized on 15/7/2020. The text messages were admitted as Exhibit 21. Ms Barraud said Ms Daniels claimed via text message that on the morning of 15/7/2020 she checked the dogs had water and removed their coats. A table recording the identification tag numbers assigned to the animals on the 3/6/2020 and 15/7/2020 was admitted as Exhibit 22. Ms Barraud said the appellant told her she was breeding dogs at her residence and there were puppies and adult dogs at the premises, consistent with that claim.

25. [25]
    Ms Barraud agreed on arrival at the appellant’s address on 3/6/2020 it appeared the appellant had just arisen, and it was therefore reasonable to expect the presence of faeces in the enclosures. Ms Barraud maintained she would expect the amount of faeces to be limited and obviously fresh, not a build-up. Ms Barraud rejected the assertion some of what she described as dog faeces in the Cody and Honey enclosure was droppings from miniature ponies and maintained she could tell the difference. She counted faeces in this enclosure but stopped at 40.

26. [26]
    Ms Barraud accepted on 3/6/2020 she initially told the appellant she did not intend to seize any animals but said she changed her mind after a phone call with Chief Inspector Young. Ms Barraud agreed Mr Young did not attend the property or himself see any animals on 3/6/2020. Ms Barraud said her decision to seize animals was due to advice provided by Laura Finnegan as to the severity of conditions they suffered, and the appellant’s history with RSPCA. Ms Barraud said she chose to seize animals instead of giving a direction they be taken to a vet, in part due to the appellant’s prior history of non-compliance with directions, hiding animals and obstructing inspectors.

27. [27]
    Ms Barraud accepted four of the five Golden Retrievers in the pen together were wearing flea collars, a fifth collar was on the ground, and had been worn at some stage. It was suggested Ms Barraud removed flea collars from the little dogs before taking them and she could not recall. Ms Barraud agreed the appellant showed her products she had been using to remove fleas. Ms Barraud accepted it was possible she was also shown products for worm control and ear infections; she remarked, “I remember seeing a whole heap of products there at the property.” Ms Barraud said she believed it was on 10/6/2020 she was shown an antibiotic tablet used for treatment of ear infection in the dog Jigsaw and she seized a sample to confirm that. Ms Barraud agreed on 3/6/2020 Great Danes Nala and Jigsaw were affected by “sticktight” fleas, and the appellant showed her products she was using to treat them. Ms Barraud was unaware if any video recording showed live fleas.

28. [28]
    Ms Barraud agreed on 3/6/2020 she instructed the appellant not to provide animals food or water until the inspection was complete, and animals did not receive any food or water that day, including young puppies. Ms Barraud did not regard that as a breach of duty under s 17 of the Act. Ms Barraud accepted that day the appellant asked to feed horses at their usual feeding time. Ms Barraud accepted the appellant said she would take any animal deemed in need of treatment to a vet. Ms Barraud agreed on 3/6/2020 she instructed the appellant take two puppies to a vet because they had pale gums. Ms Barraud rejected the assertion that meant no other animals required treatment. Ms Barraud agreed a vet inspection found no issues with the puppies.

29. [29]
    Ms Barraud agreed she gave the appellant a welfare direction on 3/6/2020 and returned on 10/6/2020 to check compliance with the direction, which was satisfactory. Ms Barraud did not dispute she attended at the scheduled time of 12pm. Ms Barraud accepted her next compliance visit was on 1/7/2020 at the scheduled time of 10.30am, and again the appellant was compliant. Ms Barraud agreed her next visit was 15/7/2020 at 9am, even though this visit was scheduled for 1pm that day. Ms Barraud said she was aware that due to the appellants health issues she did not get out of bed until approximately 10am and would not yet have catered for the animals. Ms Barraud made subsequent compliance visits to the appellant’s premises and the appellant was compliant.

30. [30]
    The appellant attempted to cross-examine Ms Barraud with reference to the document described as a record of her treatment of animals over the course of 2020. Objection, taken on the basis the witness could not comment upon a document they had not seen or prepared, was upheld.

31. [31]
    Rebecca Anne Stewart is a veterinarian employed by RSPCA. Dr Stewart completed a Bachelor of Veterinary Science degree in 2011. Dr Stewart examined the dog Poppy on 15/7/2020. Dr Stewart said the dog had a mild flea burden with some live fleas which might have built up over a few days to a week. Dr Stewart agreed that despite being treated for fleas, a dog will get more fleas if placed into an area where fleas are present. Dr Stewart accepted there are difficulties in eradicating fleas from a property that is 10 acres in size.

32. [32]
    Anne Lyla Chester gave evidence via phone. Dr Chester is employed by RSPCA as Chief Veterinarian; having completed a Bachelor of Veterinary Science degree and with 33 years experience as a vet. On 3/6/2020 she examined and treated animals seized by Ms Barraud. She described the following:

• Great Dane Nala: Appeared thin, had a severe live flea burden with “stickfast” fleas which would take at least a couple of weeks to accumulate, extensive tartar on her teeth. The fleas were treated effectively. Dr Chester rejected the suggestion the majority of fleas on Nala were dead. Teeth were treated with a scale and polish under general anaesthetic, with no X-rays or extractions.
• Golden Retriever Cody: Appeared very thin, moderate flea burden accumulated over a couple of weeks up to a month, grade 3 dental disease with bad breath, plaque on his teeth, receding gums and some ulcerations; tested positive for gastrointestinal parasite hookworm, osteoarthritis in right hip due to hip dysplasia resulting in muscle wastage. Cody’s teeth were treated by scale and polish under anaesthetic. The hookworm was treated effectively. The osteoarthritis was treated with anti-inflammatory tablets and required pain relief.
• Chihuahua Pablo: Appeared thin, moderate flea burden present about a month, bad breath, missing teeth, grade 4 dental disease. The dental disease was significant, including: chronic gingivitis, receded gums exposing tooth roots, bone resorption, oronasal fistula due to tooth root abscess and infection, required removal of 18 teeth, had taken at least six months to develop, would have been obvious due to visible tartar, loose teeth and bad breath.

33. [33]
    Dr Chester said treatment of dental disease requires cleaning of a dog’s teeth under general anaesthetic. She said Cody’s symptoms would have been present for at least a couple of months and should have been obvious. Dr Chester said treatments to prevent hookworm are readily available. She said that animals living on dirt might be more likely to acquire hookworm since hookworm can live in the ground. Dr Chester also said because hookworm can live outside of an animal’s gut it is sometimes necessary to retest a treated animal. She said RSPCA treatments were therefore monthly.

34. [34]
    Regarding fleas, Dr Chester said “stickfast” fleas tend to attach themselves to a spot on the host animal rather than move around as other fleas do. Dr Chester said these fleas can stay attached to an animal for a little while after the fleas die. She said treatments are readily available to treat flea infestations and effective treatment might require multiple doses since the animals might be reinfected from their environment. Dr Chester accepted that turmeric was used as a treatment for arthritis and that some literature claimed it to be very beneficial as an anti-inflammatory.

35. [35]
    Dr Chester said dog’s shelter requirements include room to move, soft bedding, clean water, and faeces removed from enclosures daily, depending upon the size of the enclosure. She said not all dogs will use bedding but should have the choice to do so. Dr Chester conceded it made sense not to provide soft bedding to a dog that did not use it but instead tore up the bedding and consumed it. Dr Chester said alternatives such as hammock beds could be used to keep dogs out of the dirt.

36. [36]
    Dr Chester said numbing creams contain a local anaesthetic lignocaine, appropriate for use to reduce pain, for example when giving an injection. Dr Chester said the numbing cream was not designed for surgery since it did not penetrate through the subcutaneous layers of the skin. Dr Chester said use of a numbing cream prior to cutting with a scalpel to remove a lump from under skin would not provide adequate pain relief. Dr Chester said the extent of pain experienced by a dog depended upon a lot of things; including, the size of the wound, how quick an incision was made, and what lump was being removed. Dr Chester said there were no circumstances in which use of a numbing cream for a procedure to remove a lump from under the skin of an animal was a reasonable method for dealing with that issue. Dr Chester said a lump the size of a golf ball would require incision of at least an inch for extraction from under the skin and would be “significantly painful”. She said a lump the size of a pea would not be as painful and, if on the surface of the skin, use of a numbing cream may have provided some pain relief. Dr Chester accepted she made statements to the prosecution lawyers as recorded in a note from a conference, including:

There are numbing creams that are good but does not know if they would provide enough numbing…without knowing the type of numbing cream used, she cannot say if the dog would have felt pain. The pain would depend on the cream.

Dr Chester did not answer responsively the question “What if the numbing cream was applied to an open wound?”.

37. [37]
    Shown photographs taken on 15/7/2020 of empty water vessels in pens, Dr Chester described the deeper pots as unsuitable for Chihuahuas to access water. Dr Chester accepted the photos did not show the entirety of the enclosures. Shown photos in Exhibit 11 (Summer, pen 1), Dr Chester acknowledged the enclosure appeared appropriate but could not comment upon its cleanliness. Shown photos in Exhibit 5 (pen 6, two Great Danes), Dr Chester observed the enclosure appeared small for two Great Danes but acknowledged if they were able to exercise out of the pen, it was otherwise suitable. She also observed there appeared lots of faeces of varying ages and rejected the suggestion that some of the patches were dead ground cover. Shown photos in Exhibit 8 (pen 7, two Golden Retrievers), Dr Chester observed the enclosure was suitable, accepted it was a very large area, but noted absence of bedding and a lot of faeces of different ages. Referred to photographs within Exhibit 8, Dr Chester conceded photo 95 did not show excessive amount of faeces, and photos 99 and 102 seemed to show faeces, but conceded some may be dead ground cover or pony droppings.

38. [38]
    Asked about the dog Nala appearing underweight, Dr Chester conceded that may result from the dog feeding a large litter of pups. Dr Chester agreed Golden Retrievers love water and there was a likelihood of them transferring dirt or faeces into a water source. Dr Chester accepted some dogs defecate more than once or twice per day.

39. [39]
    Concerning apparent discrepancy between consult notes regarding her examination of animals and a document itemising treatment of dogs for the purpose of calculating costs of their treatment, Dr Chester said she described, with reference to her notes, her best memory of treatment of individual animals, and she was not responsible for creation of the costs document.

40. [40]
    Laura Jean Finigan gave evidence via phone. At the time of this investigation, she was employed by RSPCA. Ms Finigan attended the appellant’s residence on 3/6/2020 and examined animals and their living conditions. Ms Finigan observed dogs Pablo and Poppy in pen 1, which had a significant build-up of faeces, more than she would expect if the area had been cleaned regularly. She said both dogs had a moderate flea burden requiring treatment, Pablo had signs of dental disease, namely, discolouration of teeth, red and inflamed gums and putrid breath.

41. [41]
    Ms Finigan observed dog Summer had a broken canine tooth requiring treatment. Ms Finigan regarded pen 6, which contained Great Danes Nala and Jigsaw, inappropriate due to prickles, a significant build-up of faeces, and no bedding nor toys. Ms Finigan said the prickles were uncomfortable to touch. She said both Nala and Jigsaw had a heavy flea burden, inflamed ears with a discharge, teeth discolouration and red inflamed gums. Ms Finigan observed Golden Retrievers Cody and Honey in pen 7, which had a lot of of faeces built up, no bedding, both dogs had a flea burden, discoloured teeth, and tartar build up. Cody had lack of muscle in his hind legs and shoulders. Ms Finigan said in none of her training or courses had she been advised turmeric was an appropriate treatment for arthritis. Ms Finigan acknowledged dogs were wearing flea collars and the appellant said she exercised the dogs outside of the pens.

42. [42]
    Bronwyn Joyce Sharman gave evidence via phone. Dr Sharman was employed by RSPCA as a veterinarian, having completed a Bachelor of Veterinary Science degree and with over 20 years experience. Dr Sharman examined animals on 3/6/2020.

43. [43]
    Regarding Great Dane Jigsaw, Dr Sharman observed a severe flea burden, built up over time. Dr Sharman said various treatment options were readily available for a flea problem, dependent upon the environment, and would take perhaps months to control in dirt, grass and vegetation, after a build-up. Dr Sharman was unable to comment whether the fleas were “stickfast” fleas, but her notes indicated when checked on 5/6/2020 fleas had died off as expected. Dr Sharman rejected the proposition that fleas are virtually impossible to eradicate from a large acreage, but accepted flea populations were season dependent.

44. [44]
    Dr Sharman noted Jigsaw had discharge due to infection and inflammation in the external ear canal. Dr Sharman described this condition as “chronic” due to the narrowing of the ear canal, with the top layer of skin becoming thickened. Dr Sharman said those changes take time to develop which meant it was “a long-term infection…sort of a low-grade chronic infection leading to those effects”. Asked to give a time estimate, Dr Sharman said “I would usually be thinking something again, in the order of months. You know, a little bit variable depending on how severe the infection was.” Dr Sharman said usually the condition will be noticed because of the dog's behaviour or a smell or discharge from the ear. The condition was usually treated with topical ear drops, and in this case it was successfully treated with a standard treatment, namely a long-acting ear gel. Dr Sharman rejected the suggestion the “discharge” she observed may have been liquid ear drops used by the appellant as treatment. A blood test revealed Jigsaw was anaemic which Dr Sharman attributed to the flea burden. Dr Sharman said this condition was significant, borderline whether it required a blood transfusion, but resolved after successful treatment of the flea burden. Jigsaw also had dental disease, namely proliferative gingivitis, with overgrown gums due to chronic inflammation, which was of long standing, had developed over months or more likely years, and was expected to cause mouth pain. Dr Sharman acknowledged no pain medication was administered. Dr Sharman said the condition should have been obvious to a layperson. Dr Sharman said her notes indicated a scale and polish under general anaesthetic was performed by another person.

45. [45]
    Dr Sharman examined Golden Retriever Honey and noted a severe flea burden which had accumulated over months. Testing revealed the presence of hookworm which are likely contracted from the environment and may proliferate in an area with a lot of faeces. Dr Sharman said this testing was for parasites in the dog’s stool, since eggs are passed in the stool and detected in a faecal float. Dr Sharman said preventative treatments for hookworm are readily available. Asked if an animal in receipt of regular treatment would contract hookworm, Dr Sharman said she had not seen it. She said Honey was successfully treated for this condition with standard treatment. Dr Sharman accepted an appropriate treatment for hookworm would include use of a product containing milbemycin. Dr Sharman also accepted that after treatment it remained possible for hookworm eggs to be detected in the dog’s faeces due to “larval leak”, or some residual eggs remaining. She said that was a reason to administer several treatments. Dr Sharman also seemed to accept that hookworm eggs in dog faeces may hatch, the worm then remain in soil and become a risk of infecting a dog that comes in contact with it.

46. [46]
    Dr Sharman examined Golden Retriever Summer and noted a fractured canine tooth which had become necrotic, meaning the pulp at the centre of the tooth had died off, which indicated it occurred at least a couple of weeks before. Dr Sharman expected this condition would be painful in a human, but on examination saw little response from Summer, which made it difficult to assess pain. When challenged as to why no pain relief was administered but only an antibiotic, Dr Sharman said any pain would result from infection, so antibiotic treatment was aimed at the source of any pain. Dr Sharman did not say the fractured canine tooth was in fact infected. Dr Sharman said one option for treatment included root canal surgery to attempt to save the tooth root but due to cost a common alternative is extraction to prevent infection. Dr Sharman said she would regard the fractured tooth on its own as “dental disease”. Asked whether the fracture would be obvious to a lay observer, Dr Sharman said because the canine tooth is at the front of a dog’s mouth, “people will notice that, generally speaking”. Dr Sharman accepted Summer had no issues with her body score and said dental pain may not affect eating. Otherwise, Dr Sharman described Summer’s teeth having “very minor tartar and calculus, but not too bad”.

47. [47]
    Dr Sharman examined Chihuahua Poppy and noted a severe flea burden, accumulated over months. Dr Sharman acknowledged treatment of animals was recorded in the RSPCA database. Dr Sharman said she referenced her clinical notes in describing examination and treatments of animals, she was not responsible for preparation of a schedule of associated costs and could not comment why various items were not included in the schedule.

48. [48]
    Sheree Nikovic gave evidence via phone. Ms Nikovic was employed by RSPCA, previously as an inspector. Ms Nikovic attended the appellant’s address on 15/7/2020 with Ms Barraud. Ms Nikovic identified photographs she took that day depicting empty water containers, dogs and enclosures (Exhibit 23). When they arrived at the residence at 9-9.30am the appellant was dressed in pyjamas and said she had just gotten up. Ms Nikovic accepted the appellant said two dogs were in a pen purely for mating. Ms Nikovic expected to see moisture in the bowls had they been filled the night before but did not. Despite the suggestion the photographs showed water in a red dish, Ms Nikovic maintained her recollection was that it only contained dirt.

49. [49]
    Elizabeth Alice Verhagen gave evidence. She lived at 34 Topaz Crescent, Lockyer Waters. Ms Verhagen said she had a lifetime of experience with both livestock and domestic animals, had voluntarily worked throughout her life with vets, and had enjoyed breeding animals. Ms Verhagen said she loved her animals, regarded them as her family, put their needs above her own, if she could not have them she would not have a reason to live, and having them helped her mental health. She said she knew her animals as children, would know if they were troubled in some way, and if so, would determine the problem and address it appropriately. Ms Verhagen said she was a member of Responsible Pet Breeders Australia and had a registered pet breeder identification number. Ms Verhagen said all her pups received comprehensive veterinary health examination prior to sale and were vaccinated and microchipped. She said while in her care all pups were treated for fleas and worms. Ms Verhagen produced copies of documents she provided to persons purchasing pups, namely, a caring guide and health guarantee; admitted as Exhibit 24. Ms Verhagen said in her experience vets did not always get it right regarding treatment of animals, so if she believed she was capable of dealing with an animal problem appropriately, she would do so.

50. [50]
    Ms Verhagen said she moved to Queensland in 2007 from Victoria. She had no dealings with RSPCA in Victoria but acknowledged history with them in Queensland. Although warned that history was potentially prejudicial and of no consequence regarding the present charges, Ms Verhagen insisted upon its relevance. Ms Verhagen claimed the seizure of her animals only occurred because of that history, and maintained that without the seizure of animals, none of the present charges would have been laid. Ms Verhagen said the RSPCA came to her premises in 2011 and seized a number of animals without just cause. She said she initiated proceedings against RSPCA for return of the animals and in retaliation, she was charged with offences which were eventually dismissed. Ms Verhagen said RSPCA attended her property at times in the intervening years without seizing any animals or charging her with offences, until the present case. Ms Verhagen maintained her view that the present seizure of animals was motivated by her history with RSPCA and not any valid concern about the health or welfare of animals. Ms Verhagen insisted that since the RSPCA were obliged to return animals seized unless they charged some offence, the present charges were brought to justify the seizures.

51. [51]
    Ms Verhagen acknowledged the attendance of RSPCA officers and police at her residence on 3/6/2020, arriving at about 8.45am. Due to her numerous health issues, Ms Verhagen usually arose around 10am. At that time Ms Verhagen had Golden Retrievers, a pair of Great Danes that had recently had pups, and several Chihuahuas which were also used for breeding. Ms Verhagen said her property was largely dirt due to drought and was affected by wind so that everything was covered in dirt and dust.  Her water source was from tanks and animals were provided clean water at least twice per day and as needed. Ms Verhagen said through experience she was aware of the amount of water the animals required and was careful not to waste water by oversupply, since water would become dirty due to the activity of the animals or because of wind.

52. [52]
    During the course of her evidence, Ms Verhagen produced a number of videos and photographs; including parts of Ms Barraud’s recording on 3/6/2020 and recordings Ms Verhagen made. The recordings/photos were admitted as Exhibit 27.^[1] Ms Verhagen played the recording of her conversation with Ms Barraud on 3/6/2020 which had already been admitted as Exhibit 16. Other recordings were said to demonstrate the state of Ms Verhagen’s property and the prevalence of dirt and dust.

53. [53]
    Ms Verhagen said when RSPCA inspectors arrived on 3/6/2020 she had not yet fed or catered for her animals, meaning faeces had not been removed from enclosures since the day before and most likely water would not have been clean. Ms Verhagen said the RSPCA officers were present from 8.45am until 5pm and refused her requests that she be allowed to feed and water the animals during that time. She said the inspectors commenced a walk-through of her property and Ms Barraud was recorded telling Inspector Finnegan there would be no animal seizures. Ms Verhagen said Ms Barraud repeated that statement at other times during the day. Parts of Ms Barraud’s recording were played confirming Ms Barraud’s statements.

54. [54]
    Ms Verhagen said at this time ground fleas were worse than ever due to drought conditions and it was impossible to eradicate fleas from the property. She said at times there were less or more fleas depending upon weather. Ms Verhagen said she was treating all dogs with various remedies for fleas. All dogs were bathed fortnightly with “Fido’s” flea rinse, received flea powder every second day, received a monthly topical flea treatment, and most were wearing flea collars. Ms Verhagen said her research found there was no flea treatment available to prevent fleas jumping from the ground onto a dog.

55. [55]
    Ms Verhagen said a flea would die once it had bitten a dog that had been treated and would then fall off the dog, unless it was a “stick tight” or “stick fast” flea, which were the type present in the Great Dane enclosure. Ms Verhagen said the Great Danes did not have flea collars because they would continually chew them into pieces. As a consequence, she was spraying them every second day with products Permetrol and Nucidol, insecticidal sprays for control of fleas and ticks amongst other things. Ms Verhagen said the “stick fast” fleas attached to the dog with their mouth and stayed attached even though dead, before eventually falling off. Ms Verhagen played videos showing the treatments she described and also showing fleas on dogs were not moving. She maintained fleas observed by others on the Great Danes were all dead fleas, no footage showed the contrary, and the fleas were not causing the dogs discomfort. Ms Verhagen accepted that putting dogs in an area known to have fleas risked the dog getting fleas, however, maintained because it was impossible to eliminate fleas entirely from her property, she used multiple treatment methods. Ms Verhagen insisted it was not necessary to consult a vet for a dog with fleas. Ms Verhagen did not accept the claim that Honey and Cody had a heavy flea burden with live fleas. Ms Verhagen rejected the assertion Pablo and Poppy each had a significant flea burden. Ms Verhagen rejected the suggestion her treatment of fleas was ineffectual.

56. [56]
    Ms Verhagen said pen 1 was behind the house and divided into 3 sections; the smallest measuring 6 square metres, was used for mating Chihuahuas. The other two areas were each approximately 35 metres square and much larger than the minimum space requirement stipulated for small Chihuahuas in the code of practice for keeping and breeding of dogs. She said the other enclosures for the Great Danes and Golden Retrievers were also much larger than the minimum required. Ms Verhagen said the large dogs were not confined in the pens all day but separately allowed the run of the whole property for at least an hour every day. Ms Verhagen said although the dogs had shelter in the enclosures, they often preferred to stay outside. Video of dogs playing in the rain was played in support of that claim.

57. [57]
    Ms Verhagen acknowledged the need to provide bedding for dogs and accepted there was no bedding in the enclosures with the Great Danes and Golden Retrievers. She said that was because the dogs continually destroyed and ate any type of bedding she provided. Ultimately, she chose not to provide bedding on advice of a vet since the dogs eating the bedding created risk of an intestinal blockage. Video, taken after the welfare direction was given to Ms Verhagen, requiring she provide bedding, showed Great Danes destroying carpet lining placed in their enclosure, including the presence of that material in the dog’s faeces. Ms Verhagen pointed out bedding was provided to the Chihuahuas.

58. [58]
    Ms Verhagen acknowledged a responsibility for an owner to pay attention to and look after a dog’s teeth. Ms Verhagen maintained that none of the dogs were behaving in a way that suggested they were suffering from dental disease or were discomforted by such a condition. Ms Verhagen said dental disease was a broad term which included stages starting with slightly inflamed gums and tartar build up. She said all dogs get tartar build up as a normal occurrence and she adopted methods to delay that happening, including providing dental chews, raw bones, and in the case of smaller dogs, chicken necks. Ms Verhagen asserted it was natural and unavoidable that an aged dog’s teeth would discolour and become brown but that was not a condition requiring treatment or the seeking of veterinary advice. Ms Verhagen also maintained a dog having bad breath did not mean any dental disease was present but might result from whatever the dog had eaten. Ms Verhagen said there was no evidence any of her dogs had bleeding gums, were irritable, were not eating or were drooling.

59. [59]
    Ms Verhagen acknowledged Golden Retriever Summer had a broken canine tooth but maintained it was not causing the dog discomfort nor affecting her eating or chewing and therefore did not require treatment by a vet. Ms Verhagen noted the dog’s weight was good and she was behaving and eating normally. She said she pressed on the dog’s gum in the presence of Ms Barraud to demonstrate the dog was not in pain. Ms Verhagen said Dr Sharman’s evidence was the fracture of the tooth was recent and occurred in the previous 2 weeks. Ms Verhagen said Summer was aged 1 year 10 months, well short of when dental disease might occur. Ms Verhagen highlighted that if any of her animals were out of sorts, she would determine the issue and deal with it. In cross-examination Ms Verhagen said she could not recall when she learned of the fracture. The suggestion made in cross-examination that Ms Verhagen said earlier in her evidence she was aware of the fracture before 3/6/2020 was incorrect.

60. [60]
    Ms Verhagen said Cody was aged 13 and it was natural therefore to expect he would have tartar build up on his teeth and his having bad breath was immaterial. Ms Verhagen noted the only treatment administered by RSPCA for Cody’s alleged dental disease was that his teeth were cleaned. She disputed that demonstrated any dental disease. Ms Verhagen acknowledged Great Dane Jigsaw had tartar build up and bad breath but denied he had inflamed gums or any dental disease or that she should have sought treatment with a vet. Ms Verhagen accepted Exhibit 19 was a photograph of Chihuahua Pablo’s mouth. She did not accept he had dental disease or that it was necessary to remove 18 teeth since his behaviour was normal and he showed no discomfort.

61. [61]
    Ms Verhagen acknowledged a responsibility to be aware of and treat any ear infection a dog may suffer. Ms Verhagen said Great Dane Jigsaw had an ear infection she had been treating for about 10 days with antibiotic products Otiderm, which she sprayed inside the ears, and a tablet Flagyl, both of which she showed Ms Barraud on 3/6/2020. Ms Verhagen said this condition might take weeks to resolve. Ms Verhagen rejected the suggestion the infection had been present for months and her treatment was not working. She rejected the assertion she should have sought treatment of this condition with a vet and maintained a vet would have advised the very treatment she was providing.

62. [62]
    Ms Verhagen said the average lifespan of Golden Retrievers is 11 years and dogs Cody and Honey were aged 13 and 12 years respectively. She acknowledged osteoarthritis was a condition that could not be avoided but could be managed with anti-inflammatory and pain medication when needed. She said because Cody and Honey were experiencing arthritis, she was giving them turmeric every day to address inflammation and pain. She acknowledged Cody had muscle wastage but said that was due to his age and inactivity. Ms Verhagen produced an article confirming the benefits of turmeric as an antioxidant with anti-inflammatory and anti-microbial properties. The learned acting Magistrate refused to admit the document as an exhibit but noted that Ms Verhagen questioned a veterinarian who acknowledged the use of turmeric as an inti-inflammatory treatment.

63. [63]
    Ms Verhagen acknowledged an owner's responsibility to keep dog enclosures clean and free from build-up of faeces. She said she usually removed faeces from all dog enclosures daily. She acknowledged however, as she explained to Ms Barraud on 3/6/2020, she had not cleaned the Great Dane enclosure for several days due to her being physically and mentally unwell. Ms Verhagen said at that time she had no one to help her and said it may have been up to a week that pen remained uncleaned. Ms Verhagen maintained that given the size of the enclosure being over 200 square metres, significantly larger than the minimum 30 square metres, the amount of faeces present was not excessive. She rejected the assertion the build-up of faeces had accumulated over weeks. Ms Verhagen also acknowledged the pen housing Golden Retrievers Honey and Cody had not been cleaned the day before; this was due to a lengthy appointment with her psychiatrist and late arrival home. Ms Verhagen pointed to an entry on her calendar, photographed by RSPCA officers on 3/6/2020 (Exhibit 12), listing a psychiatric appointment on 2/6/2020 at 3pm. Ms Verhagen also maintained that pen 5, which housed 5 Golden Retrievers, did not have an excess of faeces present. She said the faeces present on 3/6/2020 resulted only from the dogs defecating during the previous evening, which was expected given they were fed late in the day. Ms Verhagen asserted the claim by Ms Barraud to have stopped counting faeces at 40 was not supported by the recording made that day.

64. [64]
    Ms Verhagen accepted the importance of treating dogs for worms and acknowledged her instruction to buyers of new puppies consistent with that responsibility, as set out in Exhibit 24. She also accepted that infection could result from a dog having contact with faeces and the need therefore for enclosures to be cleaned of faeces. Ms Verhagen maintained she treated both Honey and Cody for hookworm about 2 weeks before 3/6/2020, which was confirmed by details recorded on the calendar photographed by RSPCA that day (Exhibit 12). Ms Verhagen maintained a dog could test positive for hookworm eggs in their faeces despite having been treated, since the treatment killed adult worms not their eggs. Ms Verhagen said that was why a monthly treatment regime was necessary, and she treated the dogs consistent with the spreadsheet of treatments she created.

65. [65]
    Ms Verhagen produced a document, described as a spreadsheet of her treatment of her animals through 2020, which she created on her computer and updated every month or two during the course of that year. Ms Verhagen said the first half of the spreadsheet corresponded exactly with the pages of her calendar, photographed by RSPCA inspectors on 3/6/2020, and which were in evidence as Exhibit 12. She said the entries on the calendar were made to ensure she did not forget or otherwise miss doing things, including treating the animals, because her memory was so bad. She said the spreadsheet reflected a complete record of her treatments of all her dogs and was created for the purpose of keeping a record of the treatment regime for each dog. Objection was taken to admission of the spreadsheet document on the basis that since Ms Verhagen expressly disavowed her breeding of dogs was a business and instead insisted it was a hobby done for pleasure, the document was not a business record and did not meet the requirements for admission under s 93 of the Evidence Act. Counsel for RSPCA established in cross-examination of Ms Verhagen that at the relevant time she was not employed and was in receipt of a disability benefit. Ms Verhagen said she sold puppies at a market value dependent upon the breed and sold perhaps as many as 20 pups per year. Ms Verhagen said “you’re lucky if you break even” after accounting for the expenses involved. The learned acting Magistrate provisionally permitted the tender as Exhibit 25, subject to his ruling upon admissibility as part of his decision.

66. [66]
    Ms Verhagen denied there were prickles in the Great Dane enclosure that were prickly or uncomfortable or that troubled the dogs. She maintained what was described as prickles was in fact ground cover which at times dies off but could not be eliminated. She produced what she said were samples of the prickles which she said proved it was not abrasive or prickly; admitted as Exhibit 26.

67. [67]
    Ms Verhagen acknowledged being asked by Ms Barraud on 3/6/2020 about dog Cody as recorded in Exhibit 16. Ms Verhagen acknowledged she had no formal qualifications in veterinary science but maintained she had extensive experience in treating animals, had assisted vets performing procedures on animals many times, and herself performed minor procedures as permitted by vets. She said she believed she was capable of treating Cody’s lumps. Regarding this procedure, Ms Verhagen said Cody had open wounds, she applied the numbing cream to those wounds, she waited a period for the cream to activate, she touched the wounds and Cody did not react, she then removed the lumps. She said Cody did not show signs of any discomfort. She then dressed the wounds and put Cody on a course of antibiotics.

68. [68]
    Ms Verhagen said on 3/6/2020 she told Ms Barraud of her significant health problems, including her needing psychiatric care. She said on 3/6/2020 Ms Barraud gave her a welfare direction regarding the animals, and she complied with that direction. She said Ms Barraud returned to her property to check her compliance with the direction on 10/6/2020 and 1/7/2020 at the pre-arranged times; accommodating Ms Verhagen who was a late riser due to her health. However, on 15/7/2020, despite a scheduled compliance check being arranged for 1pm, Ms Barraud arrived at 9am, Ms Verhagen was woken at that time, and over Ms Verhagen’s protests, Ms Barraud insisted she would proceed with her compliance check. Ms Verhagen complained she had not yet had opportunity to cater for any animals.

69. [69]
    Ms Verhagen said she had given all dogs water the previous evening, in a quantity that experience told her was sufficient. Ms Verhagen said she had never previously found a water bowl empty the next morning and found it hard to believe there was no water as alleged. Ms Verhagen did not accept she failed to take reasonable steps to provide adequate water.

70. [70]
    Ms Verhagen said Ms Barraud seized more of her dogs on 15/7/2020 as a result of the claim she had not complied with the welfare direction. Ms Verhagen said she later sought a review of the seizure decision with the Department of Agriculture and Fisheries and the seizure decision was overturned on the grounds there were extenuating circumstances. As a result, the dogs were returned. Ms Verhagen read from correspondence informing of the decision and sought to have a copy of the correspondence from the Department admitted as an exhibit. Objection was taken by counsel for RSPCA and the acting Magistrate declined to permit the tender on the grounds of relevance.

71. [71]
    Ms Verhagen said after the seizure of animals on 3/6/2020 she was distraught. She was concerned there may be further seizures so devised a plan to sell her animals to her daughter Tiana Daniels. Ms Verhagen said she believed if the animals were owned by another person they could not be seized. To that end she created a bill of sale for each animal recording the sale to her daughter Tiana for the sale price of one dollar each. Ms Verhagen said her daughter transferred money to her accordingly. Ms Verhagen maintained this was done purely to attempt to prevent any further seizure of animals and she still regarded all of the animals as her own responsibility. She said she continued to care for the animals without any assistance from her daughter Tiana.

72. [72]
    Jessica Myers gave evidence. Ms Myers is the daughter of the appellant. She said she was present on an occasion when the appellant cut two lumps from the dog Cody. Asked when this occurred, Ms Myers said “Quite a few years ago. It might have been back in 2018.” Ms Myers said she was visiting her mother’s place, and her mother asked her to assist. She said Cody had exposed lumps that he had been scratching. She said numbing cream was used on the wounds, and she had the dogs head on her lap while her mother cut the lumps out. Ms Myers said the dog did not appear stressed or worried in any way, was calm the whole time, his breathing was steady, and he did not flinch or whine. She said the wound was treated and dressed. Asked “Now, at the time, were the lumps subcutaneous, under the skin, or were they open wounds?”, Ms Myers replied “No, they were open”. Ms Myers acknowledged she had no formal qualification as a veterinarian or veterinary nurse.

73. [73]
    Tiana Daniels gave evidence. She is the daughter of Ms Verhagen. She said her mother was an animal lover who devoted herself to the care of her pets. She said she had never witnessed any neglect in her mother’s care of animals. She said her mother’s animals loved her mother and were excited to be with her. Ms Daniels said she had never been a registered breeder or involved in breeding of dogs. She said her only involvement with her mother’s breeding of dogs was when a teenager and she helped out with admin, including advertising and communicating with potential owners. She was not involved in the care of the animals. She said on 3/6/2020 she was not living at her mother’s address but received a call from her mother and went to her residence around 11am.  She said after the decision was made to seize animals her mother was distraught. Ms Daniels said after that day she moved back into her mother’s place, partly due to her concerns for her mother’s welfare. She said on the morning of 15/7/2020 she saw the dogs in the enclosures at the rear of the house. She said there were 2 Chihuahuas in a small pen for mating. She noticed they had water in their bowls at that time. She said she removed their coats before leaving around 8am. Ms Daniels rejected the suggestion there was no water in the dog bowls on that day and the bowls were completely dry.

74. [74]
    Ms Daniels acknowledged she had purchased her mother’s dogs after the seizures on 3/6/2020 to prevent any more animals being seized. She then regarded herself as legally owning them, however, she acknowledged the animals remained her mother’s pets and that her mother was solely responsible for their care. Ms Daniels said she had purchased one of the Chihuahuas seized on 15/7/2020 from a breeder in New South Wales, ultimately showed Ms Barraud proof of that purchase, and that dog was returned to her.

75. [75]
    Ms Daniels said when the remainder of the dogs seized on 15/7/2020 were returned on 31/8/2020, she went with her mother to collect them. She said dog Shayla had an ear infection when returned to them and they were given medication to treat that condition. She said the dog did not have that condition when seized. She said they were told dog Twinkie had sore ears as well, she could not recall if they were also given medication for Twinkie, but his condition did require medication as treatment.

Relevant law

Nature of appeal

76. [76]
    These appeals are authorised by s 222 of the Justices Act 1886. Pursuant to s 223, the appeals are by way of rehearing on the evidence given in the proceeding below, subject to the discretion to give leave to adduce fresh, additional or substituted evidence if satisfied special grounds exist. In that event the appeals are by way of rehearing on the original evidence and on the new evidence. 

77. [77]
    In Fox v Percy,^[2] the majority explained an appeal by way of rehearing as follows:

The nature of the “rehearing” provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.

The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. (Citations removed)

78. [78]
    In Lee v Lee,^[3] the High Court restated the task of the appellate court as follows:

A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”. (Citations removed)

79. [79]
    In Pavlovic v Commissioner of Police,^[4] the Queensland Court of Appeal confirmed that “good reason” must be identified to satisfy the requirement of s 223(2) for granting leave to adduce further evidence. The court accepted consideration of the requirements identified by the High Court in Gallagher v The Queen,^[5] as a useful guide for determining whether “special grounds” exist; namely, whether the evidence with reasonable diligence would have been available at trial, is apparently credible, and if believed, might reasonably have led to a different result.

80. [80]
    Pursuant to s 225, on the hearing of the appeal the court may confirm, set aside or vary the appealed order or make any other order the court considers just.

Offence provisions and elements of charges

81. [81]
    The appellant was convicted of a charge alleging breach of s 15 of ACPA. That charge alleged failure to comply with the compulsory code of practice by failure to ensure provision of housing for the welfare of dogs; namely, failure to provide housing and exercise areas in a clean state appropriate for their health and welfare. 

82. [82]
    At the time of the alleged offence section 15 of ACPA provided as follows:

15 Regulation may require compliance with code of practice

Maximum penalty for subsection (3)—300 penalty units.

83. [83]
    Section 13 of ACPA provides power for a regulation to make codes of practice about animal welfare, including about the care and handling of animals. Section 16 of ACPA provides the code of practice is admissible in evidence in a proceeding for an offence against the Act, if relevant to the act or omission to which the proceeding relates. Section 2 of the Animal Care and Protection Regulation 2012 provides that schedule 3A is made a code of practice and that a person must comply with the code of practice. Schedule 3A is a code of practice for breeding of dogs. Section 2 of the code provides that a breeding dog means an undesexed dog, kept or used for breeding. Section 3 of the code provides:

3 Housing

A person in charge of premises used for keeping a breeding dog or a relevant puppy must ensure the dog or puppy is provided housing that is designed, constructed and maintained for its welfare.

84. [84]
    The Queensland Government also published a document titled “Queensland Animal Welfare Standards and Guidelines for Breeding Dogs and their Progeny” to “provide minimum requirements for persons responsible for the breeding of dogs.” The publication states:

This document describes standards and guidelines for the care and management of breeding dogs and their progeny that:

• allow dog breeders to meet their duty of care
• promote positive animal welfare management practices for breeding dogs and their progeny.

85. [85]
    A copy of the standards and guidelines publication was admitted on the trial as Exhibit 14. Standard 17 provides as follows:

S 17 Housing and exercise areas must be maintained in a clean and appropriate state and appropriate for the health and welfare of a dog.

86. [86]
    The elements of the charge under s 15 of ACPA are as follows:

1. The appellant was a person in charge of premises used for keeping breeding dogs and therefore a person to whom a compulsory code requirement applied, namely, the code of practice in schedule 3A;
2. The appellant failed to comply with a requirement of the code to ensure the dogs were provided housing that was designed, constructed and maintained for their welfare, namely, failed to maintain housing and exercise areas in a clean and appropriate state and appropriate for the health and welfare of the dogs.

87. [87]
    The appellant was also convicted of eleven charges alleging a breach of duty under s 17 of ACPA. Two of these charges alleged failure to provide dogs with water; three charges alleged failure to provide dogs with appropriate accommodation or living conditions; and six charges alleged failure to provide dogs with treatment of disease or injury.

88. [88]
    Section 17 of ACPA relevantly provided:

17 Breach of duty of care prohibited

1. A person in charge of an animal owes a duty of care to it.

2. The person must not breach the duty of care.

Maximum penalty—300 penalty units or 1 year’s imprisonment.

3. For subsection (2), a person breaches the duty only if the person does not take reasonable steps to—

1. food and water;

2. accommodation or living conditions for the animal;

…

4. the treatment of disease or injury; or

…

4. In deciding what is appropriate, regard must be had to—

1. the species, environment and circumstances of the animal; and

89. [89]
    Pursuant to s 12 of ACPA, a person in charge of an animal includes an owner and a person who has custody of the animal.

90. [90]
    The elements of the charges under s 17 of ACPA are as follows:

1. The appellant was a person in charge of an animal;
2. The appellant did not take reasonable steps to provide for the animal’s needs for water, or accommodation or living conditions, or treatment of disease or injury, in a way that was appropriate, having regard to the species, environment and circumstances of the animal, and the steps a reasonable person in the appellant’s circumstances would reasonably be expected to have taken.

91. [91]
    The appellant was also convicted of a charge under s 18 ACPA alleging cruelty to an animal by causing it pain. Section 18 relevantly provided:

18 Animal cruelty prohibited

1. A person must not be cruel to an animal.

Maximum penalty—2000 penalty units or 3 years imprisonment.

92. [92]
    The elements of the charge against s 18 ACPA are as follows:

1. The appellant caused an animal pain;
2. In the circumstances the appellant’s causing the animal pain was unjustifiable, unnecessary or unreasonable.

93. [93]
    Section 178 of ACPA provides that offences against the Act are summary offences, and proceedings for an offence must start within the later of specified periods, namely, one year after the commission of the offence, or 6 months after the offence comes to the complainant’s knowledge, but within two years after the commission of the offence.

Evidence Act

94. [94]
    The learned acting Magistrate ruled as inadmissible a spreadsheet created by the appellant and said to reflect her treatment of animals during the course of 2020 on the basis it was not a business record under s 93 of the Evidence Act 1977. Section 93 is contained in Part 6 of the Act which is headed “Admissibility of statements and representations”. Section 93 relevantly provides:

2. In this section—

business includes any public transport, public utility or similar undertaking carried on in Queensland or elsewhere by the Crown (in right of the State of Queensland or any other right) or a statutory body.

95. [95]
    In R v Campbell,^[6] Holmes CJ explained the purpose and scope of s 93 as follows:^[7]

Section 93(1) offers an alternative to the giving of oral evidence of a fact. It enables evidence which might have been given by a witness in court to be admitted where it has instead been recorded in documentary form, if the conditions in s 93(1)(a) and at least one of the conditions in s 93(1)(b) are met. That alternative is permitted for a reason: that the person who would give the oral evidence is unavailable or can no longer have a memory of it. The purpose of the section is to provide for the reception of evidence of a witness who is no longer in a position to give it orally.

What s 93(1)(a) clearly contemplates is that a record may be made by one person from information supplied by another, the second having personal knowledge of the subject matter of the information. Alternatively, the maker and the supplier of information may be identical, but that can only be so where the record is made in the course of the trade or business in question by someone who has personal knowledge of the information. In either circumstance, the focus of s 93(1)(b) is on the availability or recollection of the supplier of the information. 

96. [96]
    Section 93 does not exhaustively define what is meant by the term “trade or business”, but its meaning is extended under s 93(2) to include government entities and statutory bodies. Dictionary definitions of “business” include: one’s occupation, profession, or trade; the sale of goods and services for the purpose of making a profit; a person, partnership, or corporation engaged in business; an established or going enterprise or concern.^[8]

97. [97]
    In R v Murdoch,^[9] Morrison JA concluded a document recording results of a school’s investigation of a complaint about conduct of a teacher directed towards a student satisfied the requirements of s 93. He said:^[10]

In my view the letter, Exhibit 5, came within the provisions of s 93 of the Evidence Act. It was a document that was brought into existence at the request of the Deputy Principal (L) and the school’s CEO, to record factual matters concerning the school’s investigation of alleged impropriety by a teacher in respect of a student. It cannot be doubted that a school has an obligation, as part of its business of caring for student welfare, to investigate such an allegation, and to keep appropriate records of the investigation, and its outcome. Just as a school’s records of student attendance are admissible, so too are the records of such an investigation.

Nor, in my respectful view, can it be doubted that a school is a “business” within s 93(1)(a). It has long been established that both public and private hospitals are a business for the purposes of that section. This school was a fee charging school. If a hospital which charges fees to administer to the physical welfare of persons is a business, how can it be that a school, which charges fees to administer to the educational welfare of persons, is not? (Citations removed)

98. [98]
    Part 7 of the Evidence Act provides for admissibility of reproductions of documents, including s 106, which concerns “a copy of an original document made or used in the course of a business”. For Part 7, s 104 provides that “business includes any undertaking”. Schedule 3 of the Act defines “undertaking” as follows:

undertaking includes public administration and any business, profession, occupation, calling, trade or undertaking whether engaged in or carried on—

2. for profit or not; or

3. in Queensland or elsewhere.

Particulars

99. [99]
    Each of the charges included particulars of the conduct of the appellant alleged as the basis of her liability. No application to amend the particulars was sought by the prosecution after the plea of not guilty was entered. In finding charge 1 (complaint sworn 19/8/2020) proved, the learned acting Magistrate found an element of the particulars was proved but on a different basis than that particularised. In the recent decision of the Court of Appeal of R v BEO,^[11] Crowley J, citing an earlier decision of R v Knight,^[12] concluded that course was not open. His Honour said:^[13]

Second, Knight is authority for the proposition that where, as here, the Crown provides particulars of the indictment, which become part of the court record, the Crown is bound by those particulars unless, and until, they are amended; and furthermore, where leave to amend the particulars is sought by the Crown, a trial judge is obliged to consider the prejudice the proposed amendment would occasion to the accused person when determining whether leave should be granted. As Morrison JA noted in Knight, factors particularly relevant to the question of prejudice will include that the accused came to meet a Crown case differently particularised, and that on the state of the evidence at the time of the application the Crown case would likely fail, and the accused might thereby lose a chance of acquittal if the amendment was allowed. (Citations removed)

Consideration

100. [100]
     As identified above, this appeal is by way of rehearing on the evidence before the acting Magistrate, as well as any additional evidence admitted by leave. I am required to conduct a real review of the evidence and the reasons for decision and give the judgment which in my opinion the learned acting Magistrate ought to have given. In this case the acting Magistrate expressed findings as to the credit and reliability of witnesses, including the appellant. I should respect those findings unless glaringly improbable or contrary to compelling inferences.

Additional evidence relied upon by appellant

101. [101]
     On the hearing of this appeal the appellant seeks to rely upon material not admitted during the trial. Pursuant to s 223 of the Justices Act, special grounds must be established before leave to do so will be granted. The respondent opposes admission of that material. The appellant’s additional documents are described below.

1. Animal Welfare Investigations (ACPA), Operational Procedures and Guidelines Manual, pages 28 & 88 (animal welfare investigation flow charts)
2. Page 6, Regulating animal welfare services, Report 6: 2021-22
3. Dept of Agriculture & Fisheries internal review decision 25/8/2020
4. Email correspondence dated 7/4/2021, 13/5/2021, 25/2/2022, 7/4/2022 & 9/8/2020 from RSPCA prosecutions to appellant
5. RSPCA statement from website: “Our role in enforcing the law”
6. Witness statements of RSPCA Inspectors Barraud & Finigan
7. Veterinary reports of RSPCA treatments by veterinarians Dr Chester, Dr Sharman & Dr Stewart
8. File note dated 9/8/2022 by RSPCA of conference with veterinarian Dr Chester
9. Veterinary Surgeons Board of Queensland Guideline for content of patient record
10. RSPCA Schedules of costs: 1/4/2022, 4/8/2022, 9/8/2022, 21/10/2022, 22/6/2023; list of discrepancies
11. Guideline for vaccination of dogs and cats
12. Witness statements of Dr Chester, Dr Sharman, Dr Stewart
13. Assorted documents:

• 4 stages of dental disease
• Bad breath in dogs
• Worn teeth in dogs
• Canine urine marking
• Pain scale for dogs
• Sticktight fleas
• Anaemia in dogs
• Ear infection in dogs
• Hookworm in dogs
• Osteoarthritis in dogs
• Hip dysplasia in dogs
• Muscle atrophy in dogs
• Health benefits of turmeric for dogs
• Lipomas in dogs and cats
• Luxating patella in dogs
• Use of clonidine and trazodone for anxiety in dogs
• Use of gabapentin for dogs
• Use of tramadol for dogs

102. [102]
     The appellant renews arguments raised at the outset of the trial concerning the propriety of the prosecution and in doing so relies upon documents identified at numbers 1-5 above. I should have regard to these documents for the purpose of ruling upon those submissions. The appellant submits the prosecution of the charges was flawed since the case was not prosecuted by the Department of Agriculture and Fisheries, was not authorised under the Department’s prosecution guidelines, and Inspector Barraud did not involve the Department or allow oversight or her investigation or decision to prosecute. The appellant submits this was therefore a private prosecution by the complainant, ex-Inspector Barraud. The appellant argues Ms Barraud, as complainant, should have been privately represented rather than by RSPCA. The appellant also contends evidence obtained by Ms Barraud while employed by RSPCA was not admissible in the private prosecution. The learned acting Magistrate rejected like submissions, ruling that although commenced in the name of the complainant, this was a private prosecution by RSPCA. His Honour ruled the evidence obtained by Ms Barraud was, subject to relevance, admissible on the trial.

103. [103]
     At trial, the appellant relied upon the flow charts at pages 28 and 88 of the Department’s Animal Welfare Investigations, Operational Procedures and Guidelines Manual, in making submissions that due process had not been followed in carrying out the investigation and prosecution. The flow charts were admitted as Exhibit 1 below. The appellant now also relies upon recommendations contained in a report to parliament by the Queensland Auditor-General dated 30/11/2001, the Department’s review decision concerning the 15/7/2020 animal seizures, emails evidencing RSPCA prosecution officer’s attempts to negotiate a resolution of the charges prior to trial, and an RSPCA website statement of their role, in arguing the prosecution was flawed and therefore evidence inadmissible.

104. [104]
     Nothing in the legislative scheme compels such a result. An allegation that Ms Barraud did not comply with investigation guidelines or other protocols was potentially relevant to her credit and the flow charts or other documents may have provided fertile ground for cross-examination as to credit. But those documents did not provide a basis upon which the prosecution should be regarded as improper or warranting the extraordinary step of ordering a permanent stay of proceedings.^[14] As held by the learned acting Magistrate, prosecution of the case by RSPCA was authorised by s 42 of the Acts Interpretation Act. That the proceedings were commenced by a complaint in the name of the then investigating Inspector, a person duly appointed under ACPA, was entirely conventional.

105. [105]
     In addition, the appellant relies upon the decision of the Department to overturn Ms Barraud’s seizure of animals on 15/7/2020 and correspondence from RSPCA legal officers offering to withdraw charges as also evidencing impropriety in the investigation and prosecution. Although the seizures may have been unnecessary, that issue is entirely distinct from whether there was a proper basis to bring charges in respect of the appellant’s treatment of animals in her care. The Department’s decision could have no bearing upon whether the bringing of charges was appropriate. Likewise, attempts by RSPCA legal staff to negotiate an outcome avoiding a contested hearing cannot be regarded as any indication the proceedings were improper. I conclude no basis has been demonstrated upon which the charges ought to have been stayed, or the evidence obtained in the investigation excluded due to impropriety.

106. [106]
     I should consider whether documents 1-5 have any other relevance. Evidence is admissible if it is relevant to determination of a fact in issue in the proceedings.^[15] In my view the flow charts, report recommendations, review decision by the Department, the offers to withdraw charges and the RSPCA’s description of its role have no relevance to any issue in the proceedings and hence no evidentiary value. Although potentially providing ammunition for cross-examination as to credit, none of these documents was on its own admissible. The flow charts without more could not affect the question whether any charge was proved. Likewise, recommendations made in a report provided well after the subject investigation, and RSPCA’s description of the organisation’s role, have no relevance to proof of any charge.

107. [107]
     The appellant sought to introduce into evidence at the trial the review decision by the Department, effectively overturning Inspector Barraud’s decision on 15/7/2020 to seize animals. Upon objection, the learned acting Magistrate ruled the evidence inadmissible. Contrary to the appellant’s submissions, she was not told by the acting Magistrate the letter advising the decision could be put forward with her submissions. The appellant argues the reasons for decision prove she had a reasonable excuse for not providing the animals water so that she should be found not guilty of those charges. But the fact the Department ruled animals should be returned has no bearing upon whether the appellant breached her duty of care to those animals by failing to provide them water. The learned acting Magistrate was right to exclude this evidence as irrelevant. The appellant also sought to introduce evidence of the email correspondence sent to her by RSPCA legal officers which included offers to withdraw some charges upon the appellant pleading guilty to others. Objection to this course, taken on the grounds of relevance, was also correctly upheld by the acting Magistrate. Whilst an offer to drop some charges in exchange for pleas of guilty to others might understandably be viewed by a non-lawyer as significant, such a course is commonplace and for good reason. Efforts by lawyers to resolve cases to avoid delay, expense or uncertainty of a contested hearing are entirely unremarkable and say nothing about the strength or otherwise of the evidence.

108. [108]
     None of the documents 1-5 was admissible evidence relevant to determination of the charges, and apart from my consideration of them to determine the attack upon the propriety of the proceedings, none have relevance on this appeal. None of the information contained within these documents could have affected the results below. I conclude no special reason exists for these documents to be admitted as evidence on the hearing of the appeal.

109. [109]
     The appellant also seeks to rely upon witness statements of Inspectors Barraud and Finigan, and Doctors Chester, Sharman and Stewart, the veterinary reports of the doctors, the Veterinary Surgeons Board guideline and the RSPCA schedules detailing costs of treatments of animals. These are listed as documents 6, 7, 9, 10 and 12 above. The appellant contends that comparison between the witness statements of the veterinarians, their respective reports, the treatments administered, and the oral evidence of each of the doctors, “reveals inconsistencies and discrepancies and provides proof [the doctors] were being dishonest and making false statements when testifying during the trial”. Similarly, the appellant contends comparison between the verbal testimony of RSPCA Inspectors and their witness statements shows relevant inconsistency.

110. [110]
     The appellant’s submissions demonstrate a misunderstanding of the process. The appellant argues the witness statements and other documents, when compared together and with the oral evidence given, demonstrate inconsistency such that the court would not accept all or part of a witness’ account. The written witness statements of prosecution witnesses, the reports prepared by the expert professional witnesses, and the schedules detailing the treatments administered to animals and at what cost were all documents required to be disclosed to the appellant ahead of the trial of these charges as part of the brief of evidence. The purpose of that disclosure is to ensure a defendant facing criminal charges has notice of the allegations and is aware of the evidence to be led in support of them, so as to enable the defendant to contest the allegations as they see fit. But the disclosed brief of evidence is not received by the trial court and is not evidence before the trial court. The brief of evidence is not admissible unless some part or parts become so. The written statement or report of a witness is simply a hearsay document, but may become admissible; for example, to prove a prior inconsistent statement (see ss 18, 19 of the Evidence Act).

111. [111]
     If the appellant wished to prove material inconsistency between a witness’ oral evidence and what they said previously in a statement or report, it was necessary for the appellant to ask the witness about the alleged inconsistency and to ask whether the witness admitted making the statement in question. Where the witness did not distinctly admit making the statement, proof they had done so was permitted; for example, by showing them the statement or report, or by calling a person who witnessed the making of it. In that way the document, or some of it, might become evidence in the trial.

112. [112]
     The appellant did cross-examine witnesses by reference to their written witness statement or report. The appellant also sought to establish inconsistency between the evidence given by Dr Chester and Dr Sharman of their treatment of animals compared to details contained within the RSPCA schedules of costs of treatments. However, each of the doctors replied in effect they had no knowledge of or input into the costs document and their evidence of the treatments they provided was based upon their own treatment notes. The learned acting Magistrate was right to disallow cross-examination of these witness based upon a document not created by them and that they had no knowledge of. That did not prevent the appellant from placing the schedules into evidence in some other way, for example by calling an RSPCA employee with knowledge of their production. In disallowing the cross-examination, the learned acting Magistrate did not inform the appellant she could simply submit these documents along with her submissions. If that was the appellant’s understanding, it was mistaken.

113. [113]
     The appellant’s lack of knowledge of the rules of evidence is understandable, however, affords no basis upon which application of the rules should be abrogated. It was not open for the acting Magistrate to receive the documents to undertake a comparison of witnesses’ accounts. Nor is it appropriate that I do so. It was for the appellant to establish any material inconsistency through cross-examination or by calling other evidence. The documents numbered 6, 7, 9, 10 and 12 were not admissible on the trial, were not made so by the appellant, and no special reason exists upon which they should be admitted on the hearing of the appeal.

114. [114]
     Document 8 listed above is a file note provided to the appellant by the prosecution concerning a conference held with Dr Chester on 9/8/2022. Contrary to the submissions of both parties, the file note was created by an RSPCA employee, not Dr Chester. The file note however reflects what Dr Chester said during the conference regarding use of a numbing cream for removal of lumps from a dog (relevant to charge 15). The file note reads:

• It is not appropriate to remove lumps from a dog when you are not a vet.
• The size of the lumps where (sic) as follows: one the size of a one cent coin, the second was bigger than a golf ball but smaller than a tennis ball. The numbing cream used is unknown.
• There are numbing creams which are good, but does not know if they would provide enough numbing.
• Anne noted that without knowing the type of numbing cream used, she cannot say if the dog would have felt pain. The pain would depend on the cream.

115. [115]
     Evidence-in-chief by Dr Chester was to the effect that use of numbing cream was not an appropriate option for pain relief for removal of lumps from under the skin of a dog under any circumstances and doing so would be “significantly painful”. The appellant submits the file note itself should have been received in evidence and should be received on the hearing of the appeal. The appellant argues the statement made by Dr Chester in conference “indicates that it is possible that the dog felt no pain” and was therefore relevant to whether charge 15 was proved.

116. [116]
     As identified at [36] above, the appellant cross-examined Dr Chester with use of the file note, extracting a concession by Dr Chester she made the statements contained therein. The appellant read the file note into the record in doing so. Having thus proved the making of the prior statement of Dr Chester, it was strictly unnecessary the appellant also prove the file note, although it was potentially admissible pursuant to s 19 of the Evidence Act. As a result, the evidence before the acting Magistrate included statements by Dr Chester potentially inconsistent with her testimony, which pursuant to s 101 of the Evidence Act, became evidence of the truth of their contents. His Honour was therefore obliged to consider that evidence in determining whether charge 15 was proved. I will refer further to this evidence when considering that charge. Because the earlier statements by Dr Chester were in evidence at the trial and are evidence before me on the appeal, it is unnecessary to receive the file note as additional evidence. I conclude no special reason is demonstrated for receipt of the file note.

117. [117]
     The appellant also seeks to rely upon documents listed above under numbers 11 and 13. These documents can be categorised collectively as expert veterinary advice or opinion, apparently obtained from the internet. The appellant contends information in these documents undermines the credit and reliability of the prosecution veterinary witnesses and is capable of demonstrating misdiagnosis or wrongful treatment. The documents reflect some topics raised by the appellant in cross-examination of witnesses. For example, in cross-examining Dr Chester, the appellant successfully introduced evidence that turmeric is regarded as an appropriate treatment for arthritis. However, documents such as these do not become admissible evidence simply because they contain potentially relevant information, or because they can be accessed on the internet, and without evidence from an appropriately qualified person as to their contents. In order to make the documents themselves admissible, it would have been necessary for the appellant to cross-examine the expert prosecution witnesses regarding their contents, and possibly to call an expert or experts to prove them or their contents. The appellant was not instructed to present these documents with her submissions. The documents were not made admissible at the trial and without further evidence cannot be relevant or admissible concerning any issue on the hearing of the appeal. The documents were rightly disregarded by the acting Magistrate and no special reason is demonstrated for their reception on this appeal.

Admissibility of spreadsheet Exhibit 25

118. [118]
     In the course of providing reasons for decision the acting Magistrate ruled a document, provisionally marked Exhibit 25, inadmissible. This is a spreadsheet prepared by the appellant, reflecting treatments she provided to her animals through 2020. The basis taken for objection to admission of the document as a business record was that the appellant expressly described her dog breeding a hobby, not a business. The learned acting Magistrate adopted that reasoning, finding the document did not meet the requirement that it was “made in the course of trade or business”.

119. [119]
     The evidence presented by the prosecution included Exhibit 12 which consisted of photographs taken by RSPCA on 3/6/2020 of pages of a calendar which the appellant told investigators she used to record details of treatments of her animals as well as her other obligations, and she relied upon the calendar in light of her poor memory. In answer to questions from the acting Magistrate the appellant said she created the spreadsheet from information contained in the calendar and updated the spreadsheet every month or two in order to keep a record of her treatment of her animals. In answer to questions by counsel for RSPCA the appellant said she was not employed, she bred and sold puppies at market value, she may sell up to twenty dogs per year, but after expenses was lucky to break even. Ms Daniel’s evidence was that she assisted her mother’s sale of puppies by looking after advertising and dealing with customers.

120. [120]
     Relevantly here, s 93 might make the spreadsheet admissible if “it is or forms part of a record relating to any trade or business and made in the course of that trade or business”, providing also the appellant “can not reasonably be supposed…to have any recollection of the matters dealt with in the information” therein recorded. No argument was advanced that the spreadsheet was not made in the course of the appellant’s engagement in carrying out her breeding and selling dogs, or that the appellant could not, by the time of the trial, be expected to recall details of treatments administered to her animals in 2020. The only point taken was whether the appellant’s breeding and selling of dogs was a “business” for the purpose of s 93.

121. [121]
     Section 93(2) extends the meaning of “business” by inclusion of government undertakings and statutory bodies, but the term “business” is not otherwise defined. Curiously, for s 106 of the Act, relating to admissibility of copies of business records, “business” is defined to include any undertaking, whether carried on for profit or not. That meaning would encompass the appellant’s enterprise. The dictionary meanings of “business” include the sale of goods for the purpose of making a profit, and an established or going enterprise or concern. As noted by Morrison JA in Murdoch, both public and private hospitals have been held to be a business under s 93, and his Honour concluded a private school was also a business for that purpose.

122. [122]
     Many businesses, although operated with the intention of making a profit, are not profitable. Many charities might readily be regarded as operating a business as part of carrying out their core objective, although the organisation overall is not aimed at making a profit. RSPCA, is one such organisation, the core objective perhaps being animal welfare, but at the same time selling products or goods to assist in covering operating expenses. The essence of the “business” being operated is the organisation’s engagement in ongoing commercial activity.^[16] The appellant’s breeding and selling of dogs was clearly commercial. It involved her mating dogs, advertising pups for sale, preparing the pups to be traded, receiving payment upon delivery to a customer. That she did not make a profit or may have broken even does not deprive the activity of its commercial quality. The appellant’s description of that activity as a hobby not a business seems to me irrelevant. In my view the ordinary meaning of business includes ongoing commercial operations, regardless of profitability. I conclude the learned acting Magistrate erred in ruling the appellant’s spreadsheet was not made in the course of her business.

123. [123]
     In addition, the prosecution tendered without objection Exhibit 12, photographs of the appellant’s calendar pages, for January to July 2020. It is to be inferred therefore the prosecution regarded the photographs as relevant and admissible evidence. The appellant explained she made notations on the calendar of treatment of her animals, except for the flea treatments. She also made entries on the calendar with respect to personal obligations or appointments. When giving evidence, the appellant was challenged as to whether in fact she provided treatments as she claimed, or whether, whatever treatment she provided, it was effectual. The appellant relied upon details of calendar entries, made before, and without possible knowledge of arrival of RSPCA investigators on 3/6/2020, as proof she had administered treatment to her animals, including for example, worming of dogs Honey and Cody on 16/5/2020. If the respondent's arguments concerning the spreadsheet were to be accepted, it would follow the details listed on the calendar pages were similarly inadmissible documentary hearsay. Having put the photographs of the calendar entries into evidence, the prosecution objection to admissibility of the spreadsheet was unfair to the appellant. In my view both documents were admissible as a business record made by the appellant in the ordinary course of her commercial undertaking of breeding and selling dogs. The spreadsheet is admissible and should be considered by me on the hearing of the appeal.

Whether search and seizure unlawful

124. [124]
     The appellant submitted the acting Magistrate should rule the search and seizure carried out on 3/6/2020 was unlawful. The appellant argued that since RSPCA were acting upon a complaint that a pup sold by the appellant was found to have worms, and that dog was not in the appellant’s possession, the warrant to search and seize animals at the appellant’s residence was invalid. His Honour noted the warrant, Exhibit 15, was on its face validly issued and in terms authorised search of the appellant’s residence and seizure of animals as may be necessary, consistent with the legislation. No basis has been advanced upon which to doubt the correctness of his Honour’s ruling. I proceed on the basis the actions of RSPCA officers on that day were lawful.

Individual charges

125. [125]
     My obligation on the hearing of this appeal is to examine the evidence and the reasons for decision to determine whether the learned acting Magistrate erred in fact or in law and to give the judgement which in my view ought to have been given. His Honour dealt with each charge by reference to the numbers identified above. I will do likewise. In respect of each of the charges alleging a breach of duty of care, it was not in dispute the appellant was a person in charge of the animal or animals and therefore owed them a duty of care.

Charge 3 (complaint sworn 1/7/2020)

126. [126]
     This charge alleged breach of a duty of care to Golden Retriever Summer by failing to provide appropriate treatment for dental disease. It was not in contest that Summer had a broken canine tooth, however the appellant disputed the dog suffered any dental disease. The appellant acknowledged she had not sought veterinary treatment for any dental disease for Summer.

127. [127]
     The learned acting Magistrate accepted the evidence of Dr Sharman who said Summer had a broken canine tooth that had become necrotic, which amounted to dental disease. His Honour described Dr Sharman as “a reliable witness of truth”, and rejected the opinions of the appellant, who he said was not qualified to comment upon the appropriateness of Dr Sharman’s treatments. His Honour referenced the observations of Inspector Finigan that Summer’s mouth had a foul smell and signs of decay, yet did not refer to Dr Sharman’s evidence that apart from the broken canine, Summer’s teeth were “not too bad”. Nor did his Honour refer to Dr Sharman’s evidence that although she expected the broken canine to be painful, upon examination she saw little response from Summer and the only treatment given was an antibiotic, not pain relief. The photo number 395 in Exhibit 4, showing the broken tooth, does not add anything material. Respecting the acting Magistrate’s opportunity of seeing and hearing the evidence, I conclude I too should accept Dr Sharman’s evidence the tooth had become necrotic, which she said indicated it had occurred “at least a couple of weeks before”. Accepting that evidence, I conclude Summer did have dental disease, constituted by the necrotic, broken canine tooth.

128. [128]
     The appellant’s evidence was that she believed Summer did not require treatment by a vet for the broken canine because it was not causing her discomfort, nor affecting her eating or chewing, Summer’s weight was good, and she was behaving and eating normally. The appellant said she pressed Summer’s gum, in the presence of Inspector Barraud, to show Summer was not in pain. It is not correct to say, as the learned acting Magistrate did, the appellant “provided no excuses for her failure to treat the dental issues”. There is no evidence as to when the appellant became aware of the fracture.

129. [129]
     Further, Dr Sharman’s evidence supported the appellant’s account. Despite her expectation, Dr Sharman did not observe Summer to be experiencing pain, and did not provide Summer any pain relief. Dr Sharman accepted that otherwise, Summer appeared healthy. Dr Sharman did not claim Summer had an infected tooth and the antibiotic treatment provided would seem to have been a preventative measure. Dr Sharman suggested only two possible treatment options for a broken canine tooth, namely, root canal surgery or extraction, but did not adopt either. Dr Sharman described root canal surgery as expensive and unnecessary and said extraction was to prevent infection.

130. [130]
     Proof of the charge required not just that the appellant knew of, or should have known of, the fractured tooth and did not treat it. The appellant failed in her duty of care to Summer only if she did not take reasonable steps to provide for Summer’s needs for treatment of the dental disease in a way that was appropriate, having regard to Summer’s species, environment and circumstances, and the steps a reasonable person in the appellant’s position would reasonably be expected to have taken. The learned acting Magistrate concluded a reasonable person in the circumstances of the appellant would have made arrangements to have the dental disease treated. His Honour did not identify at what point that should have occurred or what treatment should have been provided. On the evidence, it may have been the appellant only learned of the fracture on 3/6/2020, by which time the appellant had no opportunity to provide any treatment. Although Dr Sharman said she believed “people will notice” a canine fracture, her answer made plain she was speaking generally. She could not give evidence as to when the appellant may or should have become aware of it. The hypothetical reasonable person in the appellant’s position could not be reasonably expected to have taken steps to treat a condition they were unaware of.

131. [131]
     However, even assuming the appellant to have been aware of the fractured canine tooth at some earlier time, it is not clear what treatment a reasonable person in her position would reasonably be expected to have taken steps to provide. Of the two veterinary treatments described as options, neither was undertaken by Dr Sharman. The only treatment actually provided, namely an antibiotic, was apparently a preventative measure. On the evidence, failure to seek veterinary treatment for the fracture did not adversely impact Summer, beyond exposure to a risk of infection. No doubt some pet owners will seek veterinary advice or opinion no matter the issue that arises. Where an animal is obviously inconvenienced or affected by some ailment, the hypothetical reasonable person’s reasonably expected response will likely require providing the animal access to appropriate treatment. The question, however, is whether a reasonable person in the appellants position, assuming they were aware of the fractured canine, would be reasonably expected to seek veterinary treatment to limit the risk of possible infection. I am not satisfied beyond reasonable doubt that is so. Even assuming the appellant to have been aware of the fractured canine well before 3/6/2020, I am not satisfied that seeking veterinary treatment to prevent possible infection was the only reasonable step appropriate, having regard to the fact Summer was not otherwise inconvenienced, and what a reasonable dog owner with that knowledge would reasonably be expected to do. I conclude a reasonable person in the appellant’s position, assuming knowledge of the fractured canine, may well have simply kept watch on Summer and sought veterinary advice if and when a problem emerged.

132. [132]
     These conclusions seem to me consistent with the credit findings of the acting Magistrate. His Honour accepted the evidence of Dr Sharman and rejected the appellant’s opinions regarding the correctness of Dr Sharman’s conclusions and treatment. Accepting Dr Sharman’s evidence, and the uncontradicted evidence of the appellant, in my view it was not open to find this charge proved. It was not open to conclude the appellant knew of the fractured tooth prior to 3/6/2020 and therefore to have been expected to have sought treatment. Alternatively, even if aware of the fracture, seeking veterinary treatment was not the only reasonable step to provide for Summer’s needs in a way appropriate that a reasonable person in the appellant’s position might take.  It follows that in my view the appellant should be found not guilty of this charge.

Charge 1 (complaint sworn 19/8/2020)

133. [133]
     This charge alleged breach of duty of care relating to Chihuahuas Pablo and Poppy by confining them in an enclosure which was unclean and where the dogs had fleas. Dogs Pablo and Poppy were located in pen 1; Exhibit 2 consists of 2 photos of Pablo, Exhibit 11 consists of photos of these dogs and pen 1.

134. [134]
     The learned acting Magistrate was not satisfied the photographs showed pen 1 contained a build-up of faeces, as claimed by Inspector Finigan, but concluded nevertheless the pen was unclean due to “caked on” dirt which his Honour concluded had built up over time. His Honour erroneously referenced photos in Exhibit 11, as being part of Exhibit 2. His Honour also concluded each of Pablo and Poppy had a current and significant flea burden, as described by Inspector Finigan, and Drs Chester and Sharman, noting that witnesses refuted the appellant’s claim the fleas on the dogs were dead. The appellant acknowledged a significant flea problem on her property but said she adopted multiple methods to attempt to control them. These included use of flea collars, flea powder, flea baths, and regular use of topical treatments. His Honour accepted the appellant had made efforts to control fleas but concluded it was “inadequate and ineffective”. His Honour referenced Dr Sharman’s evidence that flea build-up can be prevented by avoiding placing animals where fleas are present.

135. [135]
     Respecting his Honour’s advantage in seeing and hearing the witnesses, I too conclude the evidence showed as at 3/6/2020, dogs Pablo and Poppy had a significant flea burden, i.e. with live fleas. The spreadsheet Exhibit 25, and the various chemical treatments present at the appellant’s residence, give credence to the appellant’s claim she utilised multiple flea treatment methods. As the appellant conceded, at this time her property faced a significant flea problem. Evidence of the flea burden carried by Pablo and Poppy, as well as other dogs, clearly shows the appellant’s attempts at flea control were ineffectual.

136. [136]
     The particulars of this charge alleged the appellant “confined the dogs to an enclosure which was unclean and where the dogs had fleas”. The factual allegation made by the prosecution, in attempting to prove those particulars was that the enclosure was unclean because of a build-up of faeces. In written submissions in support of this charge, the prosecution alleged “Inspector Finigan observed Pen 1 to be unclean due to a build-up of faeces.”^[17] No allegation was made the enclosure was otherwise unclean or that a finding the enclosure was unclean could be made on some other basis. The learned acting Magistrate was not satisfied the claimed build-up of faeces was made out based upon his examination of the photographs of the enclosure. Yet his Honour concluded the photographs showed the enclosure was unclean because of dirt he observed. That allegation was not how the prosecution sought to prove this part of the charge and no application to amend the particulars, or the basis of the appellant’s liability, was made. Importantly, the appellant was not given notice of any change of the basis of liability and no opportunity to defend the allegation formulated by the acting Magistrate.

137. [137]
     As acknowledged in the cases of Knight and BEO referred to above, particulars play an important role of limiting the prosecution case and identifying for a defendant what that case is. The written submissions of the prosecution formed part of the court record, and no attempt was made by the prosecution to alter or depart from the case identified therein. It follows the learned acting Magistrate erred in finding an element of the charge proved on a basis that had not been relied upon by the prosecution and of which the appellant had no forewarning. As demonstrated by the acting Magistrate’s findings, the allegation the enclosure was unclean due to build-up of faeces was not proved; that allegation was bound to fail.

138. [138]
     The prosecution alleged the appellant breached her duty of care to Pablo and Poppy in two ways, first by confining them in an enclosure that was unclean due to build-up of faeces, and second by confining them in an enclosure where they had fleas. As apparent, only one of these circumstances was proved, namely, the dogs were confined in an enclosure where they had fleas. But that fact alone did not mean the charge was proved. In order to be guilty of this offence, it was necessary to show the appellant failed to take reasonable steps to provide for the animals needs for accommodation or living conditions in a way that was appropriate having regard to the dog’s species, environment and circumstances, and the steps a reasonable person in the circumstances of the appellant would reasonably be expected to have taken.

139. [139]
     On the appellant’s own account, she was well and truly aware her dogs were being confined in an area infested with fleas. She asserts she took reasonable steps to deal with that problem. However, as I have concluded, and as the appellant should have been aware, her efforts were not effective. Clearly, resolving flea infestation is necessary for the dog’s needs concerning their health and welfare. Although the appellant’s attempts at flea control by use of the various means she employed might in some circumstances have amounted to reasonable steps a reasonable person would reasonably be expected to have taken to provide for a dog’s needs in an appropriate way, they were not in this case. It was obvious the appellant’s efforts were not sufficient and therefore it was incumbent upon the appellant to do more. Her attempts at chemical control were, in these dog’s circumstances, not reasonable steps appropriate to address their need to be free of fleas. The present circumstances required removing the dogs from the flea infested enclosure. Although the appellant complained this was not practical in her circumstances, where no alternative is obvious, I conclude it was necessary in order for the appellant to discharge her duty of care to Pablo and Poppy. In my view, the appellant failed to take reasonable steps to provide for the needs of Pablo and Poppy in an appropriate way by failing to locate them in an area free from flea infestation. It follows I am satisfied beyond reasonable doubt the appellant was guilty of this charge, but without the circumstance that the enclosure was unclean.

Charge 3 (complaint sworn 19/8/2020)

140. [140]
     This charge alleged breach of a duty of care relating to Chihuahua Pablo by failing to provide appropriate treatment for dental disease. Pablo was examined by Dr Chester who described Pablo had severe and obvious stage 4 dental disease that had developed over at least 6 months and which upon examination required removal of 18 teeth.  In concluding Pablo had “advanced dental disease”, the learned acting Magistrate clearly accepted the evidence of Dr Chester. The appellant accepted Exhibit 19 was a photograph of Pablo’s mouth but denied Pablo suffered dental disease or required teeth removal, claiming he showed no discomfort and his behaviour was normal. Respecting the acting Magistrate’s advantage in seeing and hearing witnesses, I also accept the evidence of Dr Chester.

141. [141]
     The appellant herself accepted an owner has responsibility to take steps to care for a dog’s teeth. The appellant was guilty of this charge only if it were established she did not take reasonable steps to provide for Pablo’s needs for treatment of his dental disease in a way that was appropriate, having regard to Pablo’s species, environment and circumstances, and the steps a reasonable person in the appellant’s position would reasonably be expected to have taken. On the basis of the nature and severity of Pablo’s dental disease and the time over which it had developed, I accept the appellant was either aware of it or should have been, yet did not take steps to address the condition. I am satisfied, beyond reasonable doubt, a reasonable person in the appellant’s position would reasonably have been expected to seek veterinary treatment of that condition as an appropriate means of providing for Pablo’s dental health. In my view the appellant was guilty of this charge.

Charge 7 (complaint sworn 19/8/2020)

142. [142]
     This charge alleged breach of duty of care relating to Great Danes Nala and Jigsaw by confining them in an enclosure which was unclean, where they had no access to bedding, and the dogs had fleas. These dogs were located in pen 6, shown in photographs in Exhibit 5; with Nala shown in Exhibit 6 and Jigsaw in Exhibit 7.

143. [143]
     Inspector Finigan observed pen 6 had a build-up of faeces, with some having turned white. The acting Magistrate concluded the photos in Exhibit 5 showed pen 6 was “littered with a significant build-up of faeces”. Inspector Finigan also described pen 6 had no bedding and each of the dogs had a heavy flea burden, which his Honour accepted could be seen in Exhibits 6 and 7. Dr Sharman said Jigsaw was anaemic due to blood loss from a severe flea infestation, a condition that resolved after successful treatment of the fleas. Dr Chester said Nala had a severe flea burden which was successfully treated. Dr Chester also described the need to provide appropriate bedding for dogs. The appellant acknowledged the significant flea problem on her property but maintained that due to her treatment regime, the fleas seen on each of Nala and Jigsaw were dead “sticktight” fleas. The appellant acknowledged there was no bedding in pen 6 and explained that was because the dogs ate whatever bedding she provided, and consistent with veterinary advice, she chose not to provide bedding to avoid risk of an intestinal blockage. The appellant relied upon photos and video which she claimed showed the fleas on the dogs were not live and footage of dogs destroying bedding, eating it and bedding contained in faeces. The appellant acknowledged she had not cleaned this enclosure for perhaps up to a week due to her own health issues and her other obligations with animals. The appellant claimed, given the size of the pen, the amount of faeces present was not excessive.

144. [144]
     The acting Magistrate accepted the evidence and expertise of Dr Sharman and rejected alternative theories by the appellant to explain Jigsaw’s anaemia. His Honour rightly chose not to consider documents produced by the appellant in support of her submissions which were not in evidence nor put to witnesses. I too accept the evidence and expertise of Drs Chester and Sharman. Although I accept, as the appellant described and as is reinforced by the spreadsheet Exhibit 25, the appellant did provide multiple flea treatments for both Nala and Jigsaw, clearly those treatments were not effective in controlling the flea infestation. The appellant was, or should have been, aware of that. The photographs in Exhibit 5 show significant build-up of faeces within pen 6. I also accept the evidence of Inspector Finigan that some faeces had turned white and appeared aged.  It follows I am satisfied the enclosure was unclean due to build-up of faeces, that both dogs had a significant flea burden, and were not provided with bedding.

145. [145]
     To be guilty of this charge it was necessary to prove not just that the enclosure was unclean, with no bedding and the dogs had fleas. At issue was the appropriateness or otherwise of the appellant’s response to these issues. As explained above, I conclude it was insufficient for the appellant simply to have relied upon her various flea treatments since in the circumstances that course was obviously ineffective. In the absence of the appellant being able to manage this issue with the dogs remaining where they were, although inconvenient or costly, in my view the appellant was obligated to remove the dogs from the site of the flea infestation in order to have taken reasonable steps to provide for their need for living conditions free of fleas in a way that was appropriate. In my view that was the step a reasonable person in the appellant’s position was required to take.

146. [146]
     That the appellant chose not to provide any bedding was inconsistent with the identified need of dogs to have a choice of place to sleep or lie and not be forced to lie on a hard or dirt surface. I conclude a reasonable step to provide for that need was to source an appropriate alternative to the style of bedding which proved unsuitable. It was open, for example, to trial use of a sturdy hammock style bed or some other alternative rather than the soft carpet underlay described and filmed by the appellant. I conclude the decision not to provide bedding was therefore a step contrary to that reasonably expected of a reasonable person in the appellant’s position.

147. [147]
     The appellant also acknowledged the need of dogs that enclosures be kept clean from build-up of faeces and the potential for that to affect health. The appellant said her failure to clean pen 6 in the period before 3/6/2020 was due to health issues and other responsibilities. Although sympathetic to those explanations, they did not remove the appellant’s responsibility to Nala and Jigsaw to have maintained their enclosure in a clean state. She did not. Where a person in the appellant’s position is unable to personally fulfill their duty of care, a reasonable person in that position would reasonably be expected to find an alternative way of discharging that responsibility. In this case the appellant says she had no one else to help her. If so, then it may be the appellant was simply incapable of discharging her duty of care. The appellant did not maintain the enclosure in a clean state and allowed a build-up of faeces, and made no alternative arrangement to ensure the pen was cleaned. I am satisfied that in failing to clean or have someone else clean pen 6, the appellant did not take reasonable steps a reasonable person in her position would reasonably be expected to have taken to provide for the dog’s needs. In my view this charge was proved beyond reasonable doubt and the appellant should have been found guilty accordingly.

Charge 8 (complaint sworn 19/8/2020)

148. [148]
     This charge alleged breach of a duty of care relating to Great Dane Jigsaw by failing to provide treatment for ear infection. Dr Sharman said Jigsaw had discharge due to infection and inflammation in the external ear canal which appeared a chronic low-grade infection, perhaps present for months, and which was successfully dealt with via a standard treatment. Dr Sharman rejected the suggestion the “discharge” she observed may have been liquid ear drops used by the appellant as treatment. The appellant said she was aware of Jigsaw’s ear infection and had been treating it with antibiotics for about 10 days. The appellant said she advised Inspector Barraud of the products she was using, and Inspector Barraud seized a sample of a tablet antibiotic. Inspector Barraud confirmed that to be true.

149. [149]
     His Honour preferred the evidence of Dr Sharman over that of the appellant, however, his Honour overstated the effect of Dr Sharman’s evidence. His Honour said “Dr Sharman gave evidence that the ear infection was chronic; it would have been present for months.” In truth, Dr Sharman only estimated it was possible the infection was present that long and qualified this was dependent upon its severity. His Honour also recited “Dr Sharman said that she could not see any evidence of treatment.” In fact, when asked questions by the appellant whether the discharge she observed might have been liquid ear drops used by the appellant, Dr Sharman discounted that possibility on the basis that she saw a waxy discharge, whereas ear drops are usually oily. Dr Sharman did not expressly say she saw no evidence of treatment. His Honour also suggested Dr Sharman gave evidence the condition “ought to have been subject of veterinary advice”.  When asked the sort of treatment available for this condition, Dr Sharman said “Usually we treat them using topical ear drops”, however, Dr Sharman did not assert the condition could or should only be managed under veterinary supervision. Whilst no record of treatment of this condition is noted in Exhibit 12, the appellant’s calendar reflecting treatment, or in Exhibit 25, the appellant’s spreadsheet of treatments, it is clear the appellant told Inspector Barraud of her treatments on 3rd and/or 10^th June. On the basis of Dr Sharman’s evidence, the acting Magistrate said “It is clear from her evidence that the infection was chronic and had been present for months”. In finding the appellant guilty, the learned acting Magistrate said “I conclude that reasonable treatment would include veterinary advice once it had become clear that the initial treatment, if provided by [the appellant], was not effective.”

150. [150]
     The appellant readily accepted a need existed for an owner to be alert to and treat a dog’s ear infection. However, it does not follow that because Jigsaw was suffering from an ear infection the appellant was guilty of this offence. She could only be guilty if it were proved she did not take reasonable steps to treat Jigsaw’s ear infection in a way that was appropriate having regard to Jigsaw’s species, environment and circumstances and the steps a reasonable person in the appellant’s circumstances would reasonably have been expected to have taken. Although Dr Sharman theorised the infection may have been present for months, the only evidence of when the appellant became aware of it came from the appellant. She said she had been treating it with two different products which she showed to Inspector Barraud. No evidence was led that those products were not present at the appellant’s premises or that they were inappropriate as a treatment for Jigsaw’s ear infection. Dr Sharman did not give any evidence as to how long it might take for an appropriate treatment to cure an infection.

151. [151]
     Although the learned acting Magistrate expressed preference for the evidence of Dr Sharman over that of the appellant, his Honour misunderstood what Dr Sharman said. On Dr Sharman’s evidence it was open to accept the infection had been present for longer than the 10 days during which the appellant had been treating it.  But Dr Sharman did not say the appellant’s treatment was inappropriate or that the condition could only be managed by a veterinarian. As is obvious, the hypothetical reasonable person in the appellant’s position cannot reasonably be expected to have treated a condition they were unaware of. Once becoming aware of the infection, a reasonable step for a reasonable person in the appellant’s position was, as described by Dr Sharman, to treat Jigsaw’s ear infection with topical ear drops. In my view that was a step a reasonable person in the appellant’s circumstances would reasonably have been expected to have taken. On the evidence, the appellant did more than that by also administering an antibiotic tablet.

152. [152]
     Even accepting the evidence of Dr Sharman, in my view it was not open to conclude the appellant was guilty of this offence. The evidence did not show the appellant had not taken reasonable steps to deal with Jigsaw’s ear infection in an appropriate way. To the contrary, I am satisfied on the evidence the appellant took appropriate steps to treat the infection in a way a reasonable person in her position would reasonably have been expected to. It follows that the appellant should have been found not guilty of this charge.

Charge 9 (complaint sworn 19/8/2020)

153. [153]
     This charge alleged breach of a duty of care relating to Great Dane Jigsaw by failing to provide treatment for dental disease. Dr Sharman examined Jigsaw’s mouth and teeth and described he suffered proliferative gingivitis, a condition with overgrown gums and which was likely painful. Dr Sharman said the condition was due to chronic inflammation of the gums, likely developed over a period of years rather than months and should have been obvious. Dr Sharman said Jigsaw was treated in the standard way for this condition with a scale and polish under general anaesthetic. The appellant denied any of her dogs suffered dental disease on the basis that none were in obvious discomfort, none had bleeding gums or were irritable or not eating. The appellant maintained that bad breath did not necessarily indicate dental disease and that dog’s teeth discoloured as they aged but that condition did not require veterinary intervention.

154. [154]
     In accepting Dr Sharman’s evidence, the acting Magistrate concluded Jigsaw’s dental disease had developed over time, should have been obvious, and the appellant failed to treat the condition. I too accept the evidence of Dr Sharman that this condition was significant, was of long standing and the appellant must have or should have been aware of it. The appellant did not take steps to treat the condition. For the appellant to be guilty of this offence it had to be proved the appellant did not take reasonable steps to provide for treatment of  Jigsaw’s dental disease  in a way appropriate having regard to Jigsaw’s species, environment and circumstances and the steps a reasonable person in the appellant’s circumstances would reasonably have been expected to have taken. According to Dr Sharman, this was not a condition treatable other than by professional cleaning of Jigsaw’s teeth under general anaesthetic. The appellant’s view that discolouration of the teeth does not require veterinary intervention is a ready explanation why the disease developed to the extent it had over an extended period. It is obvious a reasonable person in the appellant’s position would be expected to seek veterinary treatment in order to provide appropriately for Jigsaw’s dental health. I am satisfied beyond reasonable doubt the appellant was guilty of this offence.  

Charge 10 (complaint sworn 19/8/2020)

155. [155]
     This charge alleged breach of duty of care relating to Golden Retrievers Honey and Cody by confining them in an enclosure which was unclean, where they had no access to bedding, the dogs had fleas and were infected with hookworm. These dogs were located in pen 7. Exhibit 8 includes photographs of pen 7, Exhibit 9 photos of Cody, Exhibit 10 photos of Honey. Inspector Wahlberg-Schmitt said both dogs had live fleas and bad breath, and pen 7 contained no bedding and a lot of faeces; Inspector Barraud said the pen contained a lot of faeces, she stopped counting at 40; Inspector Finigan described the pen had a significant build-up of faeces. Dr Sharman described Honey had a severe flea burden, present for months, and tested positive for hookworm which was successfully treated. Dr Chester said Cody had a severe flea burden, present for months, and tested positive for hookworm which was successfully treated. Dr Chester noted it was sometimes necessary to retest for hookworm which can live outside an animal’s gut. Dr Sharman said hookworm may be more common in areas where a lot of faeces is present and accepted hookworm eggs in faeces may hatch, the worms remain in the soil and present further risk of infection. Dr Sharman said effective treatments are readily available and that appropriate treatment would include use of a product containing milbemycin. Dr Sharman said she had not seen hookworm in an animal that received regular treatment. Dr Sharman explained that testing was for eggs in faeces and accepted it remained possible for hookworm eggs to be detected in the dog’s faeces after treatment, which was a reason to administer multiple treatments.

156. [156]
     The appellant claimed she wormed all of her animals to prevent parasites such as hookworm and did so for Honey and Cody on 16 May 2020, as noted on her calendar, Exhibit 12. The appellant said her regular treatments were as recorded in Exhibit 25. The appellant maintained a dog could test positive for hookworm eggs in their faeces despite having been treated, since the treatment killed adult worms, not their eggs. The appellant explained on veterinary advice she did not place bedding in the enclosure because the dogs destroyed and ate it which presented a risk of intestinal blockage. The appellant said she had not cleaned this enclosure the day before RSPCA arrival because she had arrived home late from a psychiatric appointment. She said the faeces present had accumulated only in the last two days. The appellant denied either Honey or Cody suffered a severe flea burden. She described a regular and varied treatment regime for all dogs to treat fleas.

157. [157]
     The acting Magistrate rejected the appellant’s claim to have treated the dogs for hookworm because he accepted Dr Sharman’s evidence that “hookworm readily responded to treatment, and she had never seen hookworm in a dog properly treated”. His Honour did not explain the entry in Exhibit 12 on 16/5/2020 recording worming of dogs Honey and Cody, which as the appellant pointed out, was made prior to and without any warning of RSPCA visiting her property. Nor did his Honour engage with the evidence of the appellant and Dr Sharman that despite being treated for hookworm, a dog might still test positive because the treatment killed adult organisms, not eggs in the dog’s stool. The entries on the calendar record worming treatment for many of the appellant’s animals. As someone breeding and selling dogs, it is illogical the appellant would not take steps to treat animals for parasites, including hookworm. In my view the reliance by his Honour upon the statement by Dr Sharman and rejection of the appellant’s evidence she wormed Honey and Cody on 16/5/2020 was an error. The effect of the evidence was only that hookworm eggs had been detected in the stool samples of both Honey and Cody. That evidence did not establish either dog was infected with adult worms and did not disprove the appellant’s claim she treated the dogs on 16/5/2020.

158. [158]
     The appellant accepted an owner’s responsibility to treat conditions such as hookworm to protect the health of a dog. I accept the evidence the appellant did treat dogs Honey and Cody for that condition with a treatment that was apt to achieve that purpose. That the dogs stool samples tested positive a couple of weeks later did not disprove the appellant wormed the dogs or that her treatment was ineffective. I am therefore satisfied the appellant took reasonable steps to provide for the animal’s treatment of hookworm in an appropriate way. A reasonable person in her position was reasonably expected to have applied an appropriate treatment, as the appellant did. It follows I am not satisfied the appellant breached her duty of care to Honey and Cody in this respect.

159. [159]
     The evidence clearly established Honey and Cody each had a severe live flea burden. In this regard, I accept the evidence of Dr Chester and Dr Sharman. The appellant acknowledged an owner’s responsibility to prevent such an occurrence. Accepting also the appellant adopted various methods to address this issue, nevertheless those efforts were ineffective. I am satisfied it was reasonably necessary for the appellant to have done more than she did; in this case that must have included removal of the dogs from the flea infested area. In my view such a step was reasonably required to appropriately address the dog’s needs and was a step a reasonable person in the appellant’s position was reasonably expected to have taken. I am satisfied beyond reasonable doubt the appellant failed her duty of care in this regard.

160. [160]
     The appellant also accepted a dog’s need to be provided bedding but chose not to do so. As Dr Chester suggested, an alternative such as a hammock style bed could have been provided. I am satisfied beyond reasonable doubt the appellant failed to take reasonable steps to provide for the dog’s need for living conditions in an appropriate way. In my view a reasonable person in the appellant’s position was required to find an alternative and suitable style of bedding as a reasonably expected step. In my view this failure of duty is proved.

161. [161]
     The appellant also acknowledged the need to provide dogs with an environment free from faeces build-up so as to protect their health and welfare. The evidence of faeces build-up within pen 7 consists of the observations of Inspectors Wahlberg-Schmitt, Barraud and Finigan, and the photos in Exhibit 8. The appellant acknowledged she had not cleaned that enclosure for two days but denied the amount of faeces was excessive. Whilst the photographs show what appears to be some faeces present, I am not satisfied on the basis of the photographs the amount of faeces present is excessive or beyond build-up over two days. The appellant’s claim that Inspector Barraud is not recorded counting faeces in this yard should be accepted, however that there is no recording of her verbally counting does not disprove that claim. The learned acting Magistrate did not expressly state he accepted the evidence of the Inspectors, but I should infer he did so. Respecting his Honour’s advantage in seeing and hearing these witnesses, I too accept the state of the enclosure was as the inspectors described. That evidence is not contradicted by the photos in Exhibit 8. I am satisfied pen 7 was unclean in that there was a build-up of faeces present, inconsistent with the appellant’s evidence it had been cleaned two days before. I am therefore satisfied beyond reasonable doubt the appellant breached her duty to dogs Honey and Cody by failing to take reasonable steps to provide them living conditions in a way that was appropriate. I am satisfied a reasonable person in the appellant’s position was reasonably expected to have either personally cleaned the enclosure or made arrangements for someone else to have done so.

162. [162]
     It follows I am satisfied the appellant is guilty of this offence, without the allegation the animals were infected with hookworm.

Charge 13 (complaint sworn 19/8/2020)

163. [163]
     This charge alleged breach of a duty of care relating to Golden Retriever Cody by failing to provide appropriate treatment for dental disease. Dr Chester said Cody had grade 3 dental disease with bad breath, plaque, receding gums and some ulcerations.  Dr Chester said the symptoms had been present for at least a couple of months, would be obvious to a layperson and required veterinary treatment, namely, cleaning under anaesthetic. Exhibit 9 includes photographs of Cody’s mouth. The appellant maintained none of her dogs suffered dental disease, put the discolouration of Cody’s teeth down to his age and his bad breath down to diet. The appellant said Cody was not affected and did not accept he required veterinary treatment for dental disease.

164. [164]
     The acting Magistrate concluded Cody suffered dental disease requiring veterinary treatment. His Honour wrongly identified Exhibit 10 as photographs of Cody, whereas Exhibit 10 contained photos of Honey. Accepting Dr Chester’s evidence, I am satisfied Cody suffered from dental disease, the symptoms of which should have been obvious to the appellant and which she failed to treat. However, the appellant was guilty of this offence only if it were proved she did not take reasonable steps to provide treatment of Cody’s dental disease in an appropriate way having regard to Cody’s species, environment and circumstances and the steps a reasonable person in the appellant’s position would reasonably have been expected to have taken. As described by both Dr Chester and Dr Sharman, treatment of dental disease resulting from build-up of plaque and tartar required professional cleaning of the teeth under general anaesthetic. The appellant did not take any steps to have this done. Her belief that teeth discolouration and bad breath were not significant was clearly mistaken. I am satisfied beyond reasonable doubt that a reasonable person in the appellant’s position was required to seek veterinary intervention in order to provide appropriately for Cody’s need for treatment of his dental disease. I am satisfied the appellant was guilty of this offence.   

Charge 14 (complaint sworn 19/8/2020)

165. [165]
     This charge alleged breach of a duty of care relating to Golden Retriever Cody by failing to provide treatment for osteoarthritis. Inspector Finigan observed Cody had a lack of muscle in his rear legs and some mobility issues. Dr Chester described Cody suffered from osteoarthritis due to hip dysplasia resulting in muscle wastage, required pain relief, and was treated with anti-inflammatory tablets. Dr Chester accepted turmeric was used as a treatment for arthritis and that some literature claimed it to be very beneficial as an anti-inflammatory. The appellant acknowledged Cody suffered arthritis which she was treating daily with turmeric. The appellant said Cody was aged 13 years, beyond a Golden Retrievers expected lifespan of 11, and the appellant attributed Cody’s muscle wastage to inactivity due to his advanced age.

166. [166]
     In concluding the appellant’s treatment of Cody’s osteoarthritis was inappropriate, his Honour relied upon evidence from Inspector Finigan that she had never been advised turmeric was an appropriate treatment for arthritis. As Inspector Finigan made clear several times, she was not a veterinarian. No basis was shown upon which Inspector Finigan was qualified to give any expert opinion regarding the merits of turmeric as a treatment option. The learned acting Magistrate did not refer to or expressly discount the expert evidence of Dr Chester, which was directly contrary; namely, that turmeric was an appropriate treatment for arthritis and was claimed as very beneficial as an anti-inflammatory.  Submissions made by the prosecution that the appellant did not question the veterinarians as to the appropriateness of turmeric as a treatment were not correct. I conclude it was not open to the acting Magistrate to prefer the opinion of Inspector Finigan over Dr Chester on this subject.

167. [167]
     The appellant accepted the need for an owner to treat conditions such as osteoarthritis. The treatment provided to Cody for his osteoarthritis by veterinarian Dr Chester was effectively the same as that provided by the appellant. There is no basis to conclude the condition was one that required exclusive veterinary attention or treatment. The appellant could only be guilty of this offence if it were proved she failed to take reasonable steps to provide for Cody’s need for treatment of his osteoarthritis in a way appropriate, having regard to Cody’s species, environment and circumstances and the steps a reasonable person in the appellant’s circumstances would reasonably be expected to have taken. I am satisfied a reasonable person in the appellant’s position was required to treat Cody’s osteoarthritis by providing him an appropriate medication, such as an anti-inflammatory. As is obvious, the appellant did so. I am not satisfied the appellant failed in her duty of care to treat Cody’s osteoarthritis and it follows the appellant should have been found not guilty of this charge.

Charge 15 (complaint sworn 19/8/2020)

168. [168]
     This charge alleged cruelty to Golden Retriever Cody by removal of two lumps from his body with a scalpel. Evidence concerning this allegation consisted of what the appellant told investigators on 3/6/2020, her evidence at trial, and that of her daughter Jessica Myers. Dr Chester gave expert opinion regarding what was described.

169. [169]
     The video recording of what the appellant said on 3/6/2020 was admitted as Exhibit 16. This footage was taken in pen 7 when RSPCA staff were examining Honey and Cody. The appellant described to Inspector Barraud that Cody had a fatty lump on his body, and had others, including two she removed by cutting them out. The appellant described they became an issue because when the dog scratched them, they “break the skin”, and both became “raw”. She said one of the lumps was the size of a one cent piece, the other larger than a golf ball but smaller than a tennis ball. She explained she applied numbing cream and waited for it to take effect and continued to apply numbing cream during the process of removal. Asked when that occurred, the appellant paused and said “It would be - 18 months ago”.

170. [170]
     In evidence, the appellant admitted she had no formal qualifications but described her experience assisting veterinarians performing minor procedures and doing so herself under supervision. The appellant said Cody had open wounds to which she applied a numbing cream, she waited for that to take effect, and when confident Cody was not reacting, she removed the lumps. The appellant was adamant Cody did not show signs of pain. The wounds were dressed and a course of antibiotics administered. The appellant was not asked when this occurred. Jessica Myers was present on an occasion her mother removed lumps from Cody. She too acknowledged she had no formal qualifications in veterinary science. Ms Myers described Cody had exposed lumps with open wounds that he had been scratching, her mother applied numbing cream to them, and she held Cody’s head on her lap while her mother removed the lumps. She said Cody did not react as if in pain. Ms Myers said this occurred some years before, perhaps in 2018.

171. [171]
     Dr Chester explained numbing creams contain the local anaesthetic lignocaine, typically used for pain reduction when giving injections, did not penetrate through the layers of the skin and were not designed for use in surgery. Dr Chester said that use of a numbing cream prior to cutting with a scalpel to remove a lump from under skin would not provide adequate pain relief. However, Dr Chester qualified that opinion, explaining the extent of pain experienced depended upon a lot of variables, including the size of the wound, how quick the incision, and what lump was removed. In Dr Chester’s opinion, there were no circumstances where use of a numbing cream for removal of a lump from under the skin was a reasonable method. Dr Chester said removal of a lump the size of a golf ball from under the skin required a significant incision and she expected would be “significantly painful”; whereas a lump the size of a pea would not be as painful. Dr Chester also said use of a numbing cream may have provided some pain relief for removal of a lump on the skin surface. When cross-examined, Dr Chester accepted she said in a conference before trial what was recorded in a file note read to her. This included: “There are numbing creams that are good but does not know if they would provide enough numbing…without knowing the type of numbing cream used, she cannot say if the dog would have felt pain.” Dr Chester was asked “What if the numbing cream was applied to an open wound?”, but did not answer in a responsive way.

172. [172]
     In the reasons for decision, His Honour quoted the appellants statement to Inspector Barraud, in which the appellant admitted cutting two lumps from Cody’s head “18 months ago”, after applying numbing cream. His Honour also referenced the appellant’s evidence Cody did not experience pain, a statement he said “was supported by Ms Daniels”. His Honour also noted evidence of the appellant’s daughter Jessica Myers that Cody was calm and did not flinch. His Honour noted Ms Myers acknowledged she had no training or qualification to perform a veterinary procedure.

173. [173]
     His Honour referred to the evidence of Dr Chester that numbing cream was generally used to help with injections, was not designed for surgery, would have been inappropriate to use for removal of lumps because it would not provide adequate pain relief, and there were no circumstances where it would be reasonable to treat that type of medical issue which would have been “significantly painful”.  His Honour referenced Dr Chester’s qualifications and experience and concluded she was “an expert in the subject matter of this charge and I accept her evidence over that of [the appellant] and her daughters who are not independent witnesses.” His Honour was critical of the appellant’s apparent view of her ability to perform such a procedure herself as lacking insight or deluded. His Honour said:

It is clear to me that [the appellant] has neither the qualifications nor expertise to have performed the surgery. The witness who did have the appropriate qualifications stated that the treatment as performed by [the appellant] would have been, quote “significantly painful”. I accept this evidence. It is clear that [the appellant]…should have taken the dog to a vet. I find that [the appellant] was cruel to Cody by causing the dog pain which was unjustifiable, unnecessary or unreasonable by cutting the two lumps off with a scalpel. I find [the appellant] guilty of charge 15.

174. [174]
     At the conclusion of the prosecution case but prior to the appellant giving evidence, the appellant raised the question whether this charge had been brought within the time limitation provided for by s 178 of ACPA. That provision required a proceeding for an offence must start within the later of the periods mentioned; namely, 1 year after the commission of the offence, or 6 months after the offence comes to the complainant’s knowledge but within 2 years after the commission of the offence. The prosecution made submissions the evidence showed the charge was started within time because the appellant told Inspector Barraud of the offence on 3/6/2020, proceedings were commenced on 19/8/2020, the appellant described “It would have been 18 months ago” when asked when the incident occurred, and the charge alleged it was committed between January and June 2019. The appellant remarked that her memory of when it occurred was not good but that she intended to call her daughter who was present for the incident and would be better able to recall when it occurred. His Honour deferred ruling on the submission until the end of the evidence. His Honour did not expressly do so and did not refer to this issue at all in his decision.

175. [175]
     As identified above, the appellant was guilty of this charge only if it were proved the appellant caused the dog Cody pain that in the circumstances was unjustifiable, unnecessary or unreasonable. It cannot be doubted the appellant had no formal qualifications as a veterinarian or veterinary nurse. The appellant did not claim any such qualification but explained her experience working with and under supervision of veterinarians. But any possible justification, necessity or reason need only be considered if it was first proved beyond reasonable doubt the appellant caused Cody pain. The appellant’s lack of formal qualification was irrelevant to that question.

176. [176]
     The conclusion of the acting Magistrate that the surgery performed would have been significantly painful was based upon acceptance of a statement by Dr Chester that the doctor herself significantly qualified. His Honour’s conclusions did not engage with those qualifications, nor with the contrary statement by Dr Chester that she could not say whether the dog would have experienced any pain. Dr Chester explained that because numbing creams did not penetrate through the skin, they were not appropriate for removal of lumps from under the skin, which would be painful. Dr Chester did acknowledge use of a numbing cream might provide pain relief for removal of a lump from the surface of the skin. Her statement that use of a numbing cream would not be appropriate under any circumstances, was a reference to use for removal of a lump located beneath the skin surface.

177. [177]
     Dr Chester also acknowledged the extent of pain that might be experienced was dependant upon a number of variables, of which she had no knowledge, including for example, the size of the wound and lump, and how quick the incision. In addition, Dr Chester accepted she said in conference that without knowing what numbing cream was used, she could not say if the dog would have experienced pain. Dr Chester was in no position to say whether the lumps were under the skin or not. No evidence proved the lumps in question were removed from under Cody’s skin. The appellant told Inspector Barraud on 3/6/2020 the lumps had broken the surface and were raw; the appellant and Jessica Myers both described they were open wounds, Ms Myers rejected the proposition they were under the skin. Asked directly for her opinion about pain if the cream were applied to an open wound, Dr Chester did not answer responsively. Accepting Dr Chester’s evidence, as his Honour expressly did, it was necessary to explain how the conclusion the procedure would have been significantly painful was reached, in light of these contradictions and qualifications.

178. [178]
     The evidence of the appellant and Jessica Myers was that Cody did not react as if in pain when the lumps were removed, consistent with Dr Chester’s evidence if the lumps were removed from the skin surface. The learned acting Magistrate was in error in stating Tiana Daniel’s evidence supported her mother and sister; Ms Daniels gave no evidence regarding this charge. Since the accounts of the appellant and Jessica Myers were not inconsistent with Dr Chester’s opinions, in my view there was no legitimate basis to reject their evidence. It was not a proper basis to do so simply because Jessica Myers is the appellant’s daughter. In my view, accepting all of what Dr Chester had to say, it was not open to conclude beyond reasonable doubt the appellant caused pain to Cody.

179. [179]
     In addition, the learned acting Magistrate did not address the issue concerning the time limitation raised by the appellant. The evidence relied upon to support the charge having been started within time was what the appellant said to Inspector Barraud. Yet that was clearly an estimate given by the appellant without any time for considered reflection. It could not for example have been relied upon to place the event as occurring exactly 18 months prior. The evidence of Jessica Myers was the incident occurred years before, perhaps in 2018. If so, it was possible the proceeding was commenced outside of the time limit. The prosecution could point to no other evidence that would satisfy the requirement the proceeding was started within 2 years after the offence occurred. In circumstances where there was no legitimate basis upon which to prefer the appellant’s estimate beyond reasonable doubt over the estimate of her daughter, I conclude the prosecution had not established the proceeding for this offence was started within time. On that basis it was not open for the appellant to be convicted of this offence.

180. [180]
     For these reasons I am of the view this charge was not proved, and the appellant should have been found not guilty.

Charge 26 and charge 28 (complaint sworn 19/8/2020)

181. [181]
     It is convenient to consider these charges together given they allege the same conduct, on the same day, but in respect of dogs confined in two different enclosures. These charges alleged breach of duty of care relating to Chihuahuas Twinkie and Chica and Golden Retriever Shayla (charge 26), and Chihuahuas Cadbury, Pixie, Pippa and Papi (charge 28), in each case by failing to provide a source of water.

182. [182]
     Inspector Barraud gave evidence she attended the appellant’s residence on the morning of 15/7/2020 in order to conduct a compliance check regarding the animal welfare direction she had given. Ms Barraud said she saw the water bowls in two of the enclosures were completely dry. Ms Barraud said the appellant appeared to be the only person present at the premises and in charge of the animals. Ms Barraud said the appellant told her she provided the dogs water the night before, however, because the weather was cool, the bowls had not been tipped over and appeared completely dry, she disbelieved that claim. Ms Barraud acknowledged she attended at about 9am, despite agreement she would attend at 1pm, and agreed she was aware the appellant would not have had opportunity to tend to the animals that morning. Ms Nikovic attended the appellant’s address on 15/7/2020 with Ms Barraud and took photographs of the enclosures and empty water containers (Exhibit 23). She acknowledged the appellant was dressed in pyjamas and said she had just gotten up. Ms Nikovic maintained she saw no moisture in the bowls. Despite the suggestion the photographs showed water in a red dish, Ms Nikovic maintained her recollection was to the contrary.

183. [183]
     The appellant said she provided the dogs water the previous evening in what she believed from experience was sufficient quantity and had never previously found the water bowls empty. The appellant did not accept she failed to take reasonable steps to provide adequate water. Tiana Daniels gave evidence that as at 15/7/2020 she was living at her mother’s house. She said that morning she saw the dogs had water in their bowls and removed their coats before leaving at about 8am. Ms Daniel’s denied the suggestion the bowls had no water in them that morning.

184. [184]
     The learned acting Magistrate accepted the evidence of the RSPCA officers, as confirmed by the photographs in Exhibit 23, that the water bowls in the respective enclosures were empty on the morning of 15/7/2020 at about 9am. His Honour rejected the appellant’s claim she filled the water bowls the previous evening and that of Ms Daniels that she saw water in the bowls about an hour before. His Honour concluded it was possible in the circumstances for the appellant to have made fresh water available. Respecting his Honour’s advantage in seeing and hearing the witnesses, I too accept the evidence the bowls were completely dry when seen by RSPCA staff that morning and reject the evidence of the appellant as implausible. On the appellant’s account, entirely contrary to her prior experience and completely independently of each other, dogs in two separate enclosures consumed all of the water she provided the previous evening, without tipping over their containers or leaving any moisture in the bowls. Likewise, I reject as implausible the evidence of Ms Daniels that independently of each other, dogs in two separate enclosures consumed the water in their bowls leaving them completely dry in the hour between her leaving and the arrival of RSPCA officers. I conclude therefore the appellant had not replenished the water bowls on the evening before the 15/7/2020.

185. [185]
     The appellant was only guilty of these offences if she failed to take reasonable steps to provide for the dogs’ needs for water in a way appropriate having regard to their species, environment and circumstances and the steps a reasonable person in the appellant’s circumstances would reasonably have been expected to have taken. I am satisfied beyond reasonable doubt a reasonable person in the appellant’s circumstances would have been expected to have ensured the dogs in the two enclosures had water continuously available. That required the appellant to personally refill water bowls as necessary, or if she were unable, to arrange for someone else to do so. I am satisfied the appellant failed to take those steps and breached her duty of care to the dogs in the two enclosures. It follows I am satisfied beyond reasonable doubt the appellant should have been convicted of both charges 26 and 28.

Charge 30 (complaint sworn 19/8/2020)

186. [186]
     This charge alleged breach of the “Code of Practice for Breeding of Dogs” on 3/6/2020, by failing to ensure dogs Pablo, Poppy, Nala, Jigsaw, Honey, and Cody were provided housing and exercise areas maintained in a clean state and appropriate for their health and welfare. Before the appellant was called upon to enter a plea to the charges, the prosecution withdrew a number of charges and amended others. The prosecution sought to amend this charge by removal of a number of dogs from the wording of the charge, including the dog Summer. However, the acting Magistrate seemingly erred by failing to delete dog Summer when reading the charge to the appellant. However, in finding the appellant guilty of this charge, the acting Magistrate did not reference the dog Summer at all. I proceed on the basis the charge was appropriately amended removing reference to the dog Summer.

187. [187]
     For the appellant to be guilty of this charge it was necessary to prove:

1. The appellant was in charge of premises used for keeping breeding dogs and therefore a person to whom the compulsory code requirement applied; and 
2. The appellant failed to comply with a requirement of the code to ensure the dogs were provided housing that was maintained for their welfare, namely, failed to maintain housing and exercise areas in a clean state and appropriate for the health and welfare of the dogs.

188. [188]
     The prosecution submissions provided particulars for the allegations for this charge, namely, the enclosures in which the dogs were confined were of an inappropriate size and were unclean due to the build-up of faeces. In finding the charge proved, his Honour concluded pen 1 was not of appropriate size, whereas pens 6 and 7 were, and all three enclosures were unclean.

189. [189]
     Regarding pen 1, housing Chihuahuas Pablo and Poppy, His Honour concluded it did not comply with the minimum size requirement set out in appendix 2 of the guidelines. His Honour accepted the appellant’s evidence this was not a permanent enclosure, and the dogs were placed into that pen the night before for mating. However, his Honour concluded that was not an exception allowed for under the guidelines. In my view his Honour erred in concluding this allegation was proved. Accepting as his Honour did that this was a temporary enclosure and the dogs were not ordinarily confined within it, it was wrong to regard this as “housing” under the relevant standard. The standards contain definitions, including that “housing” means “the area where the breeding dog lives when in a confined area”. In my view the dogs Pablo and Poppy were not living within the temporary enclosure. If his Honour’s interpretation were to be accepted, it would necessarily mean that any temporary confinement of a dog must comply with the size requirement. The stated purpose of the standards and guidelines is to provide for the “care and management of breeding dogs and their progeny” in order to “allow dog breeders to meet their duty of care” and “promote positive animal welfare management practices”. In my view confining two dogs temporarily in a smaller enclosure was not contrary to that purpose. I would hold this allegation has not been satisfied.

190. [190]
     In finding pen 1 unclean, His Honour said he did not accept the appellant’s evidence photos in Exhibit 2 do not show any faeces. Yet in giving reasons for finding charge 3 (complaint sworn 19/8/2020) proved, his Honour concluded the photographs of pen 1 were inconclusive such that there was a “lack of evidence regarding the build-up of faeces”. His Honour went on to conclude pen 1 was unclean due to dirt build-up, an allegation not made by the prosecution. For the reasons expressed above, I conclude it was not open to find the appellant guilty on the basis of this unparticularised allegation. I would find the allegation pen 1 was unclean has not been proved.

191. [191]
     His Honour did not find either of pens 6 or 7 were of a size that was inappropriate. The evidence did not show those enclosures were under the minimum required. I too conclude that allegation was not made out. His Honour did find, consistent with findings regarding charge 7 (pen 6, Nala and Jigsaw) and charge 10 (pen 7, Honey and Cody), each of pens 6 and 7 were unclean due to build-up of faeces. I have expressed above my reasons for also concluding pens 6 and 7 were unclean due to build-up of faeces. Consistent with those findings I am satisfied beyond reasonable doubt the appellant failed to provide housing for dogs Nala, Jigsaw, Honey and Cody that was maintained in a clean state appropriate for their health and welfare, contrary to a compulsory code requirement. I would find this charge proved on that limited basis.

Charge 31 (complaint sworn 19/8/2020)

192. [192]
     His Honour noted the prosecution conceded this charge had not been proved. The charge alleged the appellant breached a code of practice by providing dogs Twinkie, Chica, Shayla, Cadbury, Pixie, Pippa and Pappy unclean water. The acting Magistrate found the appellant not guilty of this charge.

Charges against Ms Daniels

193. [193]
     Ms Daniels was charged conjointly with the appellant in respect of charges 26, 28 and 31. His Honour concluded, despite Ms Daniels purported purchase of the dogs, she was not their owner nor responsible for their care. Accordingly, his Honour found Ms Daniels not guilty of each charge.

194. [194]
     As is obvious, in my opinion the appellant should be found not guilty of some of the charges of which she was convicted. In addition, the basis of her liability for some other charges is reduced below that found by the acting Magistrate. The appellant was placed on probation for a period of 18 months without recording of convictions. She has by now completed that part of the sentence. Given these features it seems to me appropriate I give the parties opportunity to be heard regarding sentence and any ancillary orders.

Orders

195. [195]
     The orders of the Court are:

1. In respect of charge 3 of the complaint sworn on 1/7/2020, and charges 8, 14 and 15 of the complaint sworn on 19/8/2020, the verdicts of guilty are set aside and instead verdicts of not guilty are entered. The appellant is discharged in respect of those charges.
2. In respect of the appeals against conviction of charges 1, 10 and 30 of the complaint sworn on 19/8/2020, the verdicts of guilty are confirmed, subject to the factual findings as set out in these reasons.
3. In respect of charges 3, 7, 9, 13, 26 and 28 of the complaint sworn on 19/8/2020, the verdicts of guilty are confirmed.

196. [196]
     I will hear the parties as to sentence and any ancillary orders.